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HomeMy WebLinkAbout95-01963 PYS510 1995-01963 ADAMS Cumberland County Prothonotary's Office Civil Case Inquiry COUNTY ASPHALT CO (vs) RAY GROUP Page 1 THE Filed. . . . . . . . : Time.. t......: Executlon Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: Reference No..: Case Type.....: COMPLAINT Judgment. l' '" .00 Judge Ass gned: OLER J WESLEY JR Disposed Desc.: DISCONTINUED ------------ Case Comments ---------____ 4/17/1995 3:35 0/00/0000 10/22/1999 **********..*****.***.**.*****....***......**.........--*-.-.........-..-.-.-.-. General Index Attorney Info ADAMS COUNTY ASPHALT COMPANY PLAINTIFF COHEN ROY S 614 NORTH FRONT STREET HARRISBURG PA 17104 RAY GROUP THE DEFENDANT MCLAUGHLIN R THOMAS 127 EAST ORANGE STREET LANCASTER PA 17602 ........................................-....-..........*.-.-.....-.-.-......... * Date Entries * ....--................-......--...........................--........-........... 4/17/1995 6/17/1996 7/03/1996 7/05/1996 7/12/1996 7/31/1996 10/28/1998 11/02/1998 11/16/1998 11/16/1998 11/16/1998 12/01/1998 12/17/1998 12/29/1998 1/12/1999 - - - - - - - - - - - - - FIRST ENTRY - - - - - _ _ _ _ _ _ _ _ _ COMPLAINT - CIVIL ACTION -------------------------------------------------------.---.------. PRAECIPE TO REINSTATE COMPLAINT - BY RENEE KILGARRIFF ESO -------------------------------------------------------.----------. SHERIFF'S RETURN FILED Litiqant.: RAY GROUP THE SERVED : 6/.26/.96 DAT~ RETD: 7/10/96 County Nm: LANCASTER Costs....: $62.60 Pd By: COHEN & HUNTINGTON, PC 07/03/1996 ------------------------------------------------------------------- ENTRY OF APPEARANCE FOR DEFENDANT BY R THOMAS MCLAUGHLIN ESO ------------------------------------------------------------------- ANSWER OF THE RAY GROUP INC TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NEW MATTER-COUNTERCLAIM PURSUANT TO PA RCP 2256 ------------------------------------------------------------------- ANSWER TO NEW MATTER AND NEW MATTER-COUNTERCLAIM --------------------------------------------------..---------------- RULE TO SHOW CAUSE 10/27/98 OBJECTION TO PLACEMEN~ O~ COURT'S LIST OF INACTIVE CASES - IN RE HEARING WEDNESDAY 1/13/99 AT 2:30 PM IN COURT~OOM NO 1 J WESLEY OLER JR JUDGE COPIES MAILED 10/28/98 ------------------------------------------------------------------- ORDER OF COURT - DATED 10/27/98 - IN RE PURGE LIST - CASE WILL NOT BE PURGED AT THIS TIME CONDITIONED UPON FILING OF PETITION AND PROPOSED RULE - BY J WESLEY OI.ER JR J - COPIES BY THE COURT ------------------------------------------------------------------- MOTION TO DISMISS FOR FAILURE TO PROSECUTE PURSUANT TO PA RCP 1037 (Cl OF DEFENDANT THE RAY GROUP INC ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT BY R HOMAS MCLAUGHLIN ESO MOTION TO DISMISS FOR FAILURE TO PROSECUTE PURSUANT TO PA RCP 1037(C) OF DEFENDANT THE RAY GROUP INC ------------------------------------------------------------------- ANSWER OF THE RAY GROUP INC TO ADAMS COUNTY ASPHALT COMPANY'S WRITTEN OBJECTION TO PLACEMENT ON THE COURT'S LIST OF INACTIVE CASES ------------------------------------------------------------------- PRAECIPE FOR REMOVAL FROM ARGUMENT LIST FOR 12/9/98 - BY R THOMAS MCLAUGHLIN ESO ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - ATTY MCLAUGHLIN ------------------------------------------------------------------- ORDER OF COURT - DATED 12/29/98 - IN RE MOTroN TO DISMISS FOR FAILURE TO PROSECUTE PURSUANT TO PA RCP 1037(C) OF DEFENDANT THE RAY GROUP INC - MOTION IS DENIED AS DUPLICATIVE - BY J WESLEY OLER JR J - COPIES t1AILED 12/29/98 ---_______w________________________________________________________ O~DE~ OF COURT - DATED 1/12/99 - ARGUMENT 1/13/99 IS CONTINU~D ~O 3/17/99 11 AM CR 1 - BY J WESLEY OLER JR J - COPIES MAILED 1/12/99 Plaintill's Complaint with Ncw Muttcr und Ncw Mullcr - Countcrcluim Pursuuntto P.A.R.C.P. 2256. 5. On or uround July 30,1996, ACA tilcd un Answcr to Ncw Mallcr and Ncw Mattcr- Countcrc1uim. 6. Notwithstanding thc fact thutthcrc Ims bccn no dockct uctivity sincc ACA filcd thc nforcmcntioncd Answcr to New Matter and Ncw Mnttcr-Countcrclaim on July 30, 1996, nctivity hus occurrcd as bctwccn thc pnrtics sincc that timc. 7. On or uround April 3, 1997, ACA providcd Defendant with Plnintiff Adams County Asphult Company's First Request for Production of Documents Addrcssed to Delcndnnt The Rny Group, Inc. A truc and correct copy of Plaintiff Adams County Asphalt Company's First Request for Production of Documcnts Addresscd to Dcfendant Thc Ray Group, Inc uttachcd hcrcto as Exhibit "A". 8. At somc point thcrcnllcr, Defendunt issucd to ACA Intcrrogatories and Requcsts for Production 0 f Documcnts. 9. Dcfcndunt provided an cxtcnsion oftimc within which to rcspond to its Intcrrogatories and Rcquests for Production of Documcnts on or uround May 9, 1997 which extcndcd such timc until May 30, 1997. A tme and corrcct of thc letter eonfirnling this cxtcnsion of timc is attachcd hcrcto us Exhihit "B". 10. Therc has bcen no signilicantuctivity hctwccn thc partics since thc summcr of 1997; howcvcr, pursunnt to rcccnt conversations with thc Prcsidcnt of ACA, Rohcrt M. Mununn, III, hc intends to engagc new counselllnd vigorously prosccutc the lIhove-cllptioncd uction. WIIEREFORE, thc plaintiff, Adullls County Asphnlt Clllllpllny, respcctfully rcqucsts this Honorahle Court to remove the uhovc-cuptioncd net ion stylcd, Adums County Asphult Company COHEN AND HUNTINGTON, P.C. BY' ROY S. COHIN, ESQUIRE Attorney I.D. NO. 323.2 BY' RINBB KILGARRIFF, ESQUIRE Attorney I.D. NO. 67580 BY' DANIIL A. FUCHS, BSQUIRB Attorney I.D. NO. 7.278 1515 Karket street, suite 1100 Philadelphia, PA 19102 (215) 5U-1700 Attorney. tor Plaintitf, Ad... County Asphalt Co. ADAMS COUNTY ASPHALT COMPANY, , COURT O' COMMON PLUS CUMBBRLAND COUNTY Plaintiff , . . , v. , , THB RAY GROUP, INC. , , Detendant. , NO. 95-1963 P~INTIF' ADAMS COlJllTY ASPHALT COMPANY'S 'IRST RBQUBST FOR PRODUCTION OF DOCUKBHTS ADDRESSED TO DBFENDANT THB RAY GROUP, INC. Plaintiff, Adams County Asphalt company ("ACA"), by its attorneys, hereby requests pursuant to the Pennsylvania Rules of civil procedure, that Defendant, The Ray Group, Inc. produce tor inspection and copying each and every document described below which is in its possession, custody or control at the office of Cohen and Huntington, P.C., 1515 Market street, Suite 818, Philadelphia, Pennsylvania, within thirty (30) days. This discovery request shall be deemed continuing in nature so as to require supplemental responses if plaintiff or any agent of Plaintiff obtains further information and documents. \ DEFINITIONS AND INSTRUCTIONS 1. "Document(s)" is used in the broadest sense as defined in the Pennsylvania Rules of civil Procedure and shall mean all original written, printed, typed, recorded or graphic matter whatsoever, however produced or reproduced, of any kind, nature and description, and all non-identical copies of both sides thereof. For purposes of this request, any document which contains any note, comment, addition, deletion, insertion, annotation, or otherwise comprises a non-identical copy of another document shall be treated as a separate document subject to production. . . , , ,." l~.:' 2. As used herein, the terms "related to" or "related to" means relating to, referring to, pertaining to, consisting of, reflecting, evidencing, concerning or in any way logically or factually connected with the matter discussed. 3. "Person" or "entity" includes, but is not limited to, an individual, a limited partnership, a corporation or other business association, or government agency or entity, or any other entity. All references to "person" in the singular number includes the plural number and visa versa. 4. The word "you" and "your" include the named parties herein responding to this request and all present and former r attorneys, accountants, agents, representatives, employees and other persons acting or purporting to act for or on their behalf. 5. "statement" means any oral communication, whether or not made in the presence of another person, in a telephone 2 j'.!i :,.t. ,1.-0, conversation, or in any other context, and regardless of whether it has been reduced to writing or otherwise recorded or referred to in any document. 6. "Identify" when used with respect to an individual includee providing the following information: a) state the individual's full name; b) the individual's present or last known home and business addresses; c) the individual's home and business telephone numbers; the identity of the individual's employer or employers at the time of the matter inquired into and the individual's position at that time; the identity of the present employer of individual and the position now held by individual. 7. "Identify" or "identity" when referring to an entity such as a corporation, partnerShip, firm or other organization includes providing the following information: a) the full name of the entity; b) the entity's present or last known address; c) the full name and business address of the entity at the time the matter is inquired into; d) the type of business conducted by the entity. 8. "Identify" or "identity" when used with respect to a document includes providing the following information: d) e) the the 3 a) a description of the type of document; b) date or dates appearing on the face of the document or, if no date appears, the date upon which the document was prepared; c) the identity of its originator, including all pereons who authored, wrote, signed, initiated, dictated, reviewed, approved or otherwise participated in creating the document; d) the identity of the addressee(s) and of each other recipient; e) the title and the general subject matter of the document and the number of pages of the document; f) any numerical or alphabetical designation applied to the document; g) the designation and location of the file(s) where the original and each copy are normallY presently being kept and the identity of each custodian thereof; h) if the document no longer exists, a statement describing the disposition that was made of it and the identity of the person who disposed of it. 9. "And" as well as "or" shall be construed either disjunctivelY or conjunctively, as necessary to bring within the scope of the interrogatory all responses which might otherwise be construed to be outside of the scope. "Each" shall be construed to include the word "every", and "every" shall be construed to include 4 ~ I the word "each". "Any" shall be construed to include the word "all", and "all" shall be construed to include the word "any". 10. References to the singular shall include the plural, and references to the plural shall include the singular. 11. The use of a verb in any tense shall be construed as the use of the verb in the past or present tense, whenever necessary to bring within the scope of the interrogatory all responses which might otherwise be construed to be outside its scope. 12. These requests are continuing in nature and plaintiffs are requested to supplement their responses in accordance with the pennsylvania Rules of civil Procedure as additional information becomes available to them. 13. Any document responsive to this request which is not produced by reason of a claim of attorney-client privilege, attorney work product privilege or for any other reason shall be identified by (1) date (2) author, (3) recipient(s) (4) general subject matter, (5) identity of persons to whom the contents of the document have already been revealed, (6) the identity of the person or entity now in possession or control of tho document or copies thereof and (7) the basis upon which it is being withheld. 14. As used herein, "Plaintiff" and "ACA" shall mean Adams county Asphalt company and persons acting or purporting to act on its behalf, including any agents, servants, attorneys, employees, ex-employees, other representatives and others who are in possession of, or who may obtain information for or on behalf of any of the aforesaid persons. 5 15, AS used herein, "Project" shall mean the Cumberland Valley Middle School project in cumberland county, Pennsylvania. 16. AS used herein, "owner," "Defendant" and "District" shall mean the cumberland Valley School District, and any persons acting or purporting to act on its behalf, including any agents, servants, attorneys, employees, ex-employees or other representatives. 17. As used herein, "Architects" shall mean The Ray Group, and any persons acting or purporting to act on its behalf, including any agents, servants, attorneys, employees, ex-employees or other representatives including but not limited to any agent, servant, attorney, employee, ex-employee or other representative from Derck and Edson ("D&E"). 18. As used herein, "Junkins" shall mean C. W. Junkins Associates, Inc., and any persons acting or purporting to act on its behalf, including any agents, servants, attorneys, employees, ex-employees or other representatives. 19. As used herein, "Replacement contractors" shall mean any and all contractors hired directly by the School District to perform any part of the work which was deleted from ACAts contract with the District. DOCUMENT REDUEST 1. Please identify and produce all documents which comprise the contract documents between The Ray Group and the District, including any and all addendum to the contract. 6 2. Please identify and produce all documents which comprise the contract documents between D&E and the District, including any and all addendum to the contract. 3. Please identify and produce all documents which comprise the contract documents between the Ray Group and D&E including any and all addendum to the contract. 4. Please identifY and produce any and all information which was sent to perspective bidders on this project. 5. Please identify and produce any pre-bid analysis performed by or on behalf of The Ray Group or D&E or the District in connection with estimated costs and time duration on the project. 6. please identify and produce all bids, estimates, or proposals which were received for. this Project. 7. please identify and produce all correspondence, memoranda, schedules or other documents between ACA and the Ray Group concerning the Project. B. please identify and produce memoranda, schedules or other documente concerning the Project. all correspondence, between ACA and D'E 7 \ 15. Please identify and produce all proposed ch rder logs. 16. Please identify and produce all shop drawing 17. Please identify and produce all request for in ation logs. 18. Please identify and produce all daily logs, work ivity reports or daily journals. \ \ \ \ \ \ I eng ering \ ments, supp I 19. Please identify all architectural and drawings relating to the project including all additions, revisions, and updates to the drawings. 20. Please identify and produce all maps and drawings of the project area. 21, Please identify and produce all specifications relating to the project. 22. Please identify and produce all work schedules, progress schedules, time logs, bar charts, CPH schedules, projections, time tables, revisions, amendmente or updates or any other similar documents, including eurnmaries thereof, whether developed and/or utilized, by The Ray Group and/or D&E or any other person in 9 connection with the Project. 23. please identify and produce all memoranda, reports, minutes, or other documents pertaining to pre-job meetings, progress meetings or other meetings between any party performing work on the project. 24. Please identify and produce all documents, schedules, logs or other similar items, including summaries thereof, containing any information with regard to the project. 25. Please identify and produce all engineering studies or reports performed by or on behalf of The Ray Group and/or D&E or in The Ray Group or D&E's possession. 26. Please identify and produce all photographs and videotapes pertaining to the project. 27. Please identifY and produce any report or analysis produced by an expert or outside consultant for the benefit of The Ray Group or otherwise utilized by The Ray Group pertaining to the project. 28. Please identifY and produce all daily reports, field reports, logs, records, dairies, manpower reports, or other documents reflecting the progress, conditions and activities on the ... 10 \ ".. Project. 42. Plea~e identify and produce any and all correspondence The Ray Group had with any neighboring re~idents concerning thi~ Project including, any and all reque~ts for right-of-ways along with the responses to same. 43. Please identify and produce all change order requests, field orders, work tickets, proposals for changes in the work or authorizations to perform work on the project, whether or not approved or made a part of the contract between the District and the replacement contractor(s) or any party with whom it had a contractual relationship. 44. Please identify and produce all applications for payment, invoices or any other documents which represent requests for payment by any and all of the replacement contractors. 45. Please identify and produce all information supplied to the replacement contractors concerning the site work to be completed on the Project after the work was deleted from ACA 's contract. 46. Please identify and produce all documents relating to any work which the District or the Ray Group claims was to have been performed by ACA which was actually performed by the replacement contractor(s) or any other party. 13 \ o. n " 0") " I " I.: ", '_J , I .; ! :.., ,..., ,.. " " . ~:1 "-. , ! " :1.,; -,l.) :... ,.J1 .. , ., -' ~ ,n, '.-. I ., J :.:,) ..... III --; The total amount to be paid to ACAC under the contract was approximately $2.3 million and the site work was to be substantial- ly completed by August/September of 1994 pursuant to the time provisions set forth in the contract. CVSD had previously entered into a contract with The Ray Group Inc. under which The Ray Group Inc. was to be the project architect and was to provide certain architectural and engineering services in connection with the design and specifications for the construc- tion of the proj ect . Also / The Ray Group Inc. was to perform certain services on behalf of CVSD during the construction phase of the project. CVSD entered into separate prime contracts with other entities for general construction (CCI Construction Company) / electrical (Warren Electrical Construction Corp.) / HVAC (Frey Lutz Corp.) / and plumbing (Herre Brothers, Inc.). These separate prime contracts were also entered into in June of 1993. Mobilization and actual construction work on this project commenced in June of 1993 but certain work, including some of the work of ACAC / had to be stopped and rearranged or rescheduled because of changes to the contract documents and drawings as requested by CVSD. The work which was stopped did not recommence for approximately nine (9) months but other work under the contracts could be performed by the prime contractors, including ACAC, during this time frame. From the outset of the commencement of construction activi- ties, there were numerous problems / disputes and disagreements 2 which arose as related to the work performed or to be performed by ACAC and the other prime contractors. These problems, disputes, and disagreements caused scheduling and coordination problems and eventually resulted in delays in the completion of work on the project. The project participants blamed each other as well as CVSD and The Ray Group Inc. for these problems and delays and a substantial portion of the blame for the problems and delays was attributed to ACAC by CVSD, The Ray Group Inc., and the other prime contractors. This history of problems, disputes, and disagreements including those related to ACAC continued throughout 1993 and through most of 1994. The originally intended substantial completion date of August 1994 could not be met and the final completion date was extended by CVSD to January of 1995 because of the delays. By November of 1994, ACAC was seriously behind the new schedule of January 1995 for the completion of its work on the project. On November 9, 1994, The Ray Group Inc. sent a letter to ACAC advising it of priority work items that needed to be completed by certain dates. The Ray Group Inc. also advised ACAC that if the priority items were not completed by the dates noted, CVSD would have the work performed and completed by another contractor and would deduct the costs related to such work from the contract amount of ACAC. A second notice letter from The Ray Group Inc. to ACAC on the priority issues was sent on November 22, 1994, which noted that the priority items had not been completed by the required date (s) . 3 Finally and on December 7, 1994, The Ray Group Inc. sent a letter to ACAC at the direction of CVSD advising ACAC of the intention of CVSD to terminate the contract between CVSD and ACAC pursuant to the terms and provisions of the General Conditions of the contract for the failure on the part of ACAC to complete the work in a timely fashion. In response to this notice of termination letter, ACAC commenced an action against CVSD in the Court of Common Pleas for Cumberland County, Pennsylvania (No. 94-6945). The Complaint filed in that action requested the issuance of a Temporary Restraining Order and a Preliminary Injunction precluding CVSD from terminating ACAC from the project. The Complaint also made a demand for damages with regard to alleged breaches of the contract between ACAC and CVSD. The Court issued a Temporary Restraining Order on December 9, 1994 and after a subsequent hearing, granted ACAC's Request for a Preliminary Injunction on January 6, 1995. ACAC returned to the project and continued working on the project sporadically over the next ten (10) months. Problems, disputes, and disagreements with ACAC continued throughout this time frame and CVSD returned to Court in October of 1995 and was successful in having the Prelimi- nary Injunction dismissed. CVSD then proceeded with a formal termination of ACAC from the project. CVSD eventually engaged another site contractor to complete and correct substantial portions of the work which was to be performed by ACAC under its contract with CVSD. 4 ACAC's action against CVSD remains open as of this date and there has been substantially no activity on the part of ACAC with regard to that action other than an initial attempt by ACAC to amend the Complaint filed in the action though even this at- tempt/request was withdrawn on behalf of ACAC. Despite the fact that the action of ACAC against The Ray Group Inc. was commenced in April of 1995, formal service of a Complaint by ACAC on The Ray Group Inc. was not made until more than a year later in June of 1996. The Ray Group Inc. filed a timely Answer to the Complaint with New Matter and a Counterclaim on July 12, 1996. A reply to the New Matter and counterclaim was filed on behalf of ACAC on July 31, 1996. The only other activity of ACAC in this action since April of 1995 was the service of a Request for Production of Documents on counsel for The Ray Group Inc. in April of 1997. The Ray Group Inc. responded to this request on April 21, 1997 indicating that all documents and records of The ~ay Group Inc. would be made available for inspection and copying at a date and time convenient for counsel. ACAC has never responded nor requested an opportunity to inspect the project files of The Ray Group Inc. with regard to this offer for production. The Ray Group Inc., on the other hand, served both Interroga- tories and Request for Production of Documents on counsel for ACAC in March of 1997. After being given two (2) extensions of time in which to answer these discovery matters, answers were provided on behalf of ACAC on June 16, 1997. Counsel for The Ray Group Inc, 5 wrote to counsel for ACAC requesting more complete answers to these discovery matters under cover letters dated June 19, 1997 and August 18, 1997. Some supplemental information was provided by counsel for ACAC though the discovery responses of ACAC were still considered to be inadequate and incomplete. There has been no activity, whatsoever, on the part of ACAC since July of 1997 in either this action or in the action commenced by ACAC against CVSD. The project itself was completed as related to the other prime contractors in or about January 1995. There remains a serious question as to whether either the documents or pertinent personnel of these other prime contractors are still in existence and/or available with regard to information related to the problems, disputes, and/or disagreements which developed on this project and which have been raised by ACAC in these actions and/or as referenced in the Complaints filed by ACAC in these actions. The documents and personnel of the other prime contrac- tors are of a critical nature in the defense of this matter since these other prime contractors either blamed ACAC or ACAC blamed them for being responsible for many of the problems, disputes, and/or disagreements and the eventual delay in the completion of construction as the result of such problems, disputes, and/or disagreements. There also remains a question as to whether even the documents and personnel of ACAC involved in this project are still in existence or available because of the lapse of time and because of information indicating that ACAC is no longer conducting business. 6 In fact, the answers of ACAC to the Interrogatories of The Ray Group Inc. confirm that at least some of the key personnel of ACAC are no longer with the company and that ACAC is without information as to the present whereabouts of such individuals. In effect, there are serious questions as to the existence and availability of documents and personnel of the various project participants which will be needed, if not essential, in th~ defense of the claims and contentions of ACAC in this action. The events described by ACAC in its Complaint cover the time frame of 1993 through 1995 and an additional three (3) years have elapsed without any substantive activities on the part of ACAC to move this matter forward to a conclusion. Furthermore, the lapse of almost six (6) years is almost certain to have impacted the memory and recollec- tions of those knowledgeable individuals with regard to this project and with regard to the testimony and evidence needed by The Ray Group Inc. to defend against the allegations and contentions of ACAC. II. PROCEDURAL BACKGROUND In October of 199B, this case appeared on the list of inactive cases and barring some activity on the part of the Plaintiff, was scheduled to be dismissed by the Cuurt for lack of activity. The Plaintiff, however, filed written objections to placement on the Court's List of Inactive Cases. Subsequently, on October 2B, 1998, the Court issued a Rule to Show Cause why the case should not be removed from the Court's list of inactive cases. The Defendant, The Ray Group Inc., filed an Answer to Plaintiff's Objections and, 7 at the same time, filed a Mot ion to Dismiss for Failure to Prosecute. The Motion to Dismiss was denied as duplicative of the Court's own Motion for Dismissal. The Plaint if f' s Written Obj ect ions acknowledged that there has been no docket activity since July 30, 1996. Additionally, Plaintiff admits that there has been no significant activity between the parties since May, 1997 and that the Plaintiff now intends to engage new counsel and "vigorously prosecute" the matter. The Ray Group Inc., in its Answer, contends that the Plain- tiff's action should be dismissed because Plaintiff has failed to diligently pursue this matter, that the Plaintiff has no compelling reason or explanation for the delay and that The Ray Group Inc. has been and will be prejudiced in the defense of this action because of the delay. III. QUESTION PRESENTED Whether this matter should be dismissed for the failure of the Plaintiff to actively proeecute the action? proposed Answers YES. IV. LEGAL ARGUMENT The facts that give rise to this matter occurred over a period of time beginning in 1993 which is over five years ago. There has been no docket activity since July of 1996 and since April of 1997, the plaintiff has not engaged in any activity to advance this action. There is no compelling reason or explanation given by the 8 plaintiff for the delay and The Ray Group Inc. has been and continues to be prejudiced in the defense of this action because of the delay. Accordingly, this action should be dismissed since the Plaintiff has effectively abandoned the action by its failure to prosecute. In Shope v. Eaqle, _ Pa. _, 710 A.2d 1104 (1998), the Pennsylvania supreme Court held that the standard to be applied for "termination for inactivity pursuant to a defendant's motion for non pros applies equally to dismissals pursuant to Rule 1901." 14., at 1105. 1n Jacobs v. Halloran, _ Pa. _, 710 A.2d 1098 (1998), the Pennsylvania Supreme Court announced a three part test to be applied when deciding whether to dismiss an action for failure to diligently prosecute, when a defendant files a Motion to Dismiss. This decision specifically overruled Penn Pipinq, Inc. v. Insurance CompanY of North America, 529 Pa. 350, 603 A.2d 1006 (1992), which had been the controlling decision in these matters. The court stated that the effect of its decision was to return to the three part test enumerated in James Brothers v. Union Bankinq & Trust Co. of Du Bois, 432 Pa. 129, 247 A.2d 587 (1968). In Jacobs, the Court held that in order to "dismiss a case for inactivity pursuant to a defendant's motion for non-pros there must first be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude. Second, the plaintiff must have no compelling reason for the delay. Finally, the delay must cause actual prejudice to the defendant." Jacobs at 1103, emphasis in original. Additionally, equitable pdnciples 9 apply. 19. In the present matter, all three conditions have been met. Accordingly, the Plaintiff's Complaint should be dismissed. A. There was a lack of due diliqence on the part of the Plaintiff to activelv prosecute this action. The facts that give rise to the allegations in the Plaintiff's Complaint occurred over the period of 1993 through 1995. This action was initiated in April of 1995. The Complaint was not served on The Ray Group Inc. until one year later, in June, 1996. There has been no docket activity since ACAC filed its Answer to New Matter and New Matter Counterclaim of The Ray Group Inc. on July 3D, 1996. Since that time, the Plaintiff has engaged in limited discovery, consisting merely of a Request for Production of Documents served on counsel for The Ray Group Inc. As stated above, The Ray Group Inc. notified plaintiff's counsel that the documents would be made available for inspection and copying at the convenience of counsel. The Plaintiff never responded and made no attempt to schedule a date and time to review the documents. On the other hand, The Ray Group Inc. served Interrogatories and Requests for Production of Documents on the Plaintiff. The Plaintiff was granted two extensions of time and eventually provided inadequate and incomplete responses to these discovery requests with the last discovery response by the Plaintiff being in May, 1997. No depositions have been conducted nor has the plaintiff even attempted to scheduled any depositions. The trivial activities on the part of the plaintiff do not represent the type 10 of significant activity that is required to overcome the Plain- tiff's obligation to diligently prosecute this matter. While Jacobs ruled that the two year lack of docket activity will no longer automatically give rise to the presumption of prejudice, the Plaintiff, nonetheless, has an affirmative duty to diligently prosecute the action. Jacobs, 710 A.2d at 1103. ~ also: Mackintosh-Hemohill v. Gulf & Western, _ Pa.Super. _, 679 A.2d 1275 (1996). "The law is well settled that it is plaintiff, not defendant, who bears the risk of failing to act within a reasonable time to move a case along." Shooe at 1108. In the present matter, the Plaintiff has allowed over two years to elapse since the last docket entry. Additionally, the Plaintiff has made no attempt to review or inspect the documents that are relevant to this matter. With the exception of providing limited information in response to the defendant's discovery requests, the plaintiff has done absolutely nothing to advance this matter except for serving discovery, which it never bothered to pursue. Considering that this matter was commenced over three years ago, the Plaintiff has clearly failed to diligently prosecute this matter, contrary to its obligation to move this matter toward a conclusion. ~ There was no comoellinq reason for the delav. Although the Jacobs decision rejected the Penn pioinq presumptiun of prejudice after a two year delay in dor.ket entries, the courts still seek a "compelling reason for the delay" in advancing a case. Marino v. Hackman, Pa. 710 A.2d 1108 11 (199B) . In Marino, the court held that, in addition to delay caused by "bankruptcy, liquidation, or other operation of law or in cases awaiting sigllificant developments in thu law, the court would consider other compelling reasons for the delay." Marino at 1111, emphasis added. In Marino, the court found that the Plaintiffs demonstrated an "unusual amount of activity not entered on the docket: the death of [Plaintiffs'] first attorney and the substitution of his partner, an attorney not known or selected by [Plaintiffs]; the taking of depositions of all the parties; the replacement of [Plaintiffs'] second attorney because of [Plaintiffs'] perception that he was not moving their case forward; the difficulties encountered by [Plaintiffs'] third attorney in obtaining the case file from [Plaintiffs'] second attorney as well as difficulty in getting the second attorney to withdraw his appearance; the exchange of letters seeking a settlement in the case; and, finally, a telephone discussion of certifying the case ready for trial." Id. The court, however, was careful to point out that "anyone of the cited factors would be insufficient to salvage this case from dismissal for inactivity, yet the total picture painted by this record is that of a case proceeding, albeit slowly towards disposition." 19. Furthermore, financial considerations do not present compelling reasons for delay. Mackintosh-Hemphi 11 v. Gul f & Western, Pa.Super , 679 A.2d 1275 (1996). The insignificant non-docket activity in the present action contrasts sharply with the Marino case. In this action there has 12 been no docket activity since July 30, 1996. There has been limited discovery, the latest being over one and one-half years ago. This activity is hardly the type of diligence anticipated by the courts to indicate a "compelling" reason for delay. Additionally, in its Written Objections to Placement on the Court's List of Inactive Cases, the Plaintiff, ACAC, has not raised ~ reasons for its failure to pursue this matter. The Court gave the Plaintiff the opportunity to take depositions in support if its Objections, yet ACAC has declined to conduct any depositions. Accordingly, it is evident that there is no compelling reason for ACAC's delay in pursuing this matter. The contention of counsel for ACAC that new counsel is to be retained to vigorously prosecute this action merely highlights the failure on the part of ACAC to prosecute the action in the first instance. ACAC has offered no compelling reason, whatsoever, for its delay in prosecuting this matter and this failure has clearly resulted in substantial prejudice to The Ray Group Inc. in the defense of this action. ~ The Rav Group Inc. has sustained preludice in the defense of this action due to the delav of the plaintiff. The Ray Group Inc. has sustained and will continue to sustain prejudice in the defense of this action because of the delay in activity on the part of the plaintiff. In Jacobs, the court pronounced that "prejudice could be established by the death or absence of a material witness." Jacobs at 1103. Additionally, the Jacobs court stated that "[w]e recognize that defendants may be 13 prejudiced by undue delays in litigation - memories fade, witnesses disappear and documents become lost or destroyed." Jacobs at 1102. Prejudice will attach not only in the death or absence of witness- es, but also when the delay causes the loss of documentary evidence or any substantial diminution in a party's ability to properly present its case. Biondillo v. Department of Transp., 674 A.2d 1175 (Pa.Cmwlth. 1996). In the present action, it has been between 3 1/2 to 5 1/2 years since the facts that allegedly give rise to this action occurred. As described above, this proj ect was very large and involved several prime contractors. The documents and personnel of the other prime contractors are critical to the defense of this matter. Additionally, the documents and personnel of ACAC are crucial to The Ray Group Inc.'s defense. There is serious doubt as to whether many of those persons and documents are still available. Furthermore, of those persons who may still be available, it is inescapable that their memories and recollections have diminished over the years. In fact, when The Ray Group Inc. served Interrogatories on Plaintiff requesting the employment status or last known home address of thirteen former ACAC employees, ACAC could only provide six addresses. Accordingly, it is evident that witnesses that may have significant information are ~o longer available. This will, undoubtedly, significantly and adversely affect The Ray Group Inc.'s ability to present a defense in this action. Not only are fundamental witnesses impossible to locate, but their memories will 14 likely have diminished over the past five (5) years regarding key details of the project in question. Also, there are serious questions as to the existence and availability of critical documents needed in the defense of this matter. Due to the complex nature of this action, these missing items will impede The Ray Group Inc.' s ability to defend itself against the plaintiff's allegations in this action. IL..- The Plaintiff's Written Oblections should be denied pursuant to the local rules. On October 27, 199B, this Court issued a Rule to Show Cause, directing the Defendant to show cause why the Plaintiff's Written Objections to Being Placed on the Court's List of Inactive Cases should not be granted. The Ray Group Inc. filed a timely response to the Plaintiff's Written Objections. The Court ordered t.hat depositions needed by the plaintiff were to be completed within 35 days. As of today's date, the Plaintiff has not taken any depositions. The Court set argument dates of January 13, 1999 and March 17, 1999 which, by agreement of counsel and approval of the Court, were continued to April 29, 1999. Pursuant to Cumberland County Rules of Procedure, Rule 210-6, a party seeking an order "shall serve a copy of the brief [in support of the motion] upon opposing counsel .., twelve (12) days before the date set for argument.... If the party seeking the order has not filed a timely brief in accordance to the time limitations of this rule, the court may deny the relief sought on that basis alone." Cumberland County Rules of Procedure, Rule 210-6. Rule 210-7 further states "Issues raised, but not briefed, shall be deemed abandoned." Cumberland County Rules of Procedure, Rule 210-7. The Plaintiff's 15 brief in support of. its Written Objections to Being Placed on the Court's List of Inactive Cases should have been served upon counsel for the Defendant on or before April 16 or 19, 1999. As of this date (April 22, 1999), counsel for The Ray Group Inc. has not received a brief from or on behalf of the Plaintiff. The failure of the Plaintiff to file a brief reinforces the position of The Ray Group Inc.that the Plaintiff has not met its responsibility to pursue this matter. The Plaintiff has effec- tively deserted this action. Accordingly, the Plaintiff's Written Objections should be deemed abandoned and dismissed pursuant to the local rules. V. CONCLUSION In conclusion, there has been a significant delay by the Plaintiff in prosecuting this matter. This delay was not caused by The Ray Group Inc. There is no compelling reason for the delay. Finally, The Ray Group Inc. has sustained prejudice in the defense of this action. Therefore, The Ray Group Inc. respectfully requests that this Court deny Plaintiff's Written Objections to Placement on the Court's List of Inactive Cases and dismiss the Plaintiff's Complaint with prejudice based upon the plaintiff's failure to prosecute the action as required under the Pennsylvania Rules of Civil Procedure. KELLY, McLAUGHLIN & FOSTER Dated:APril 22. 1999 16 COHEN AND HUNTINGTON, P.C. BY. ROY S. COHEN, ESQUIRE Attorney I.D. NO. 32342 BY. RENEE KILGARRI~~, ESQUIRE Attorney I.D. NO. 67580 1515 Market street, suite 1100 Philedelphia, PA 19102 (215) 564-1700 Attorneys for Plaintiff, Adams county Asphalt Co. ADAMS COUNTY ASPHALT COMPANY, I . . COURT or COMMON PLEAS CUMBERLAND COUNTY plaintiff, I I V. . . . . THE RAY GROUP, I I Defendant. I NO. 95-1963 ANSWER TO NEW MATTER AND NEW MATTER-COUNTERCLAIM 79. The allegations set forth in this paragraph are conclusions of law to which no response is required. 80. The allegations set forth in this paragraph are conclusions of law to which no response is required. 81. The allegations set forth in this paragraph are conclusions of law to Which no responso is required. 82. The allegations set forth in this paragraph are conclusions of law to which no response is required. 83. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, it is specifically denied that plaintiff, Adams county Asphalt (tlACAtI) was negligent, that it breached the contract with the cumberland valley school District (the tlDistrict") and/or that it caused and/or contributed to ACA's damages. B4. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the allegations contained in this paragraph are denied. B5. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the remainder of the allegations contained in this paragraph are specifically denied. 86. The allegations set forth in this paragraph are conclusions of law to which no response is required. 87. The allegations set forth in this paragraph are conclusions of law to which no response is required. 88. The allegations set forth in this paragraph are conclusions of law to Which no response is required. By way of further answer, the contract between The Ray Group, Inc. and the District is a writing which speaks for itself and any characterization or interpretation thereof is expressly denied. B9. The allegations set forth in this paragraph are conclusions of law to which no response is required. While it is admitted that ACA did not have a contract with The Ray Group, Inc., it is specifically denied that The Ray Group, Inc. owed no duty to ACA. It is also denied that The Ray Group, Inc. is not liable to ACA. 90. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, it is expressly denied that all of the services 2 rendered and/or performed by the Ray Group, Inc. with regard to the Project were done in a workmanlike manner and in accordance with the contractual arrangements with the Cumberland Valley school District and/or in accordance with recognized professional standards. Rather, the Ray Group, Inc. violated several provisions of the contract documents and intentionally interfered with the contract between ACA and the District. 91. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the remainder of the allegations in this paragraph are denied. 92. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, it is specifically denied that the work performed by ACA was not performed in a careful and workmanlike manner. By way of still further answer, it is denied that the work performed by ACA was not performed according to the contract documents and that the work performed by ACA was not performed according to recognized and accepted standards, practices and/or procedures in the construction industry. 93. The allegations sot forth in this paragraph are conclusions of law to which no response is required. By way of further answer, it is specifically denied that ACA has failed to comply with the terms, provisions and/or conditions of the contract documents and that ACA has failed to comply with the conditions precedent to the filing of the instant action. 3 94. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, it is specifically denied that ACA's damages were caused by conditions at the project site and/or conditions over which The Ray group, Inc. had no control. On the contrary, ACA's damages were caused, in whole or in part, by The Ray Group, Inc.'s intentional and wrongful interference with the contract betwean ACA and the District. 95. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the remainder of the allegations contained in this paragraph are specificallY dp.nied. 96. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, it is specifically denied that the construction delays, ACA' s need to rework sections of the proj ect, ACA' s expending of additional monies and/or ACA's inability to complete the project in a timely fashion were caused by ACA. On the contrary, ACA's damages were caused, in whole or in part, by Ray'S intentional interference with the contract between ACA and the District. 97. Denied. 9B. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, it is specifically denied that any and all actions taken by The Ray Group, Inc. with regard to the review and/or 4 consideration of Payment Applications and/or with regard to the release of funds by the District to ACA were taken by The Ray Group, Inc. in conformance with the Contract Documents and/or at the direction of the District and/or in accordance with the recognized and accepted practices, procedures and/or standards of the profession. 99. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the allegations contained in this paragraph are specifically denied. By way of still further answer, the contract documents are writings which speak for themselves and any characterization or interpretation thereof is expressly denied. 100. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the complaint filed in this action and ACA's contract with the District are writings which speak for themselves and any characterization or interpretation thereof is expressly denied. 101. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the allegations contained in this paragraph are specifically denied. 102. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the allegations contained in this paragraph are specifically denied. 5 103. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the allegations contained in this paragraph are specifically denied. 104. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the allegations contained in this paragraph are specifically denied. 105. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the allegations contained in this paragraph are specifically denied. 106. The allegations set forth in this paragraph are conclusions of law to Which no response is required. By way of further answer, the allegations contained in this paragraph are specifically denied. WJIEREFORE, Plaintiff Adams county Asphalt company, respectfully requests that this Honorable Court enter judgment in favor of Adams County Asphalt Company and against the Ray Group, Inc. and award Adams county Asphalt Company an amount in excess of $250,000.00, plus interest, punitive damages, attorney's fees and costs of suit. ANSWER TO NEW HATTER - COUNTERCLAIM PURSUANT TO PA.R.C.P. 2256 107. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the complaint filed in this action and ACA's 6 contract with the District are writings which speak for themselves and any characterization or interpretation thereof ie expressly denied. lOB. The allegations eet forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the complaint filed in this action and ACA's contract with the District are writings which speak for themselves and any characterization or interpretation thereof is expressly denied. 109. ACA is without sufficient information to either admit or deny the allegations contained in this paragraph and therefore denies same. 110. The allegations set forth in this paragraph are conclusions of law to which no response is required. By way of further answer, the Supplementary Conditions contained in ACA's contract with the District is a writing which speaks for itself and any characterization or interpretation thereof is expressly denied. 111. Admitted in part and denied in part. It is admitted that Plaintiff's complaint was filed in April, 1995 and served on the Ray Group, Inc. in May, 1996. The remainder of the allegations contained in this paragraph are conclusions of law to which no response is required. By way of further answer, the remainder of the allegations contained in this paragraph are specifically denied. 7 The total amount to be paid to ACAC under the contract was approximately $2.3 million and the site work was to be substantial- ly completed by August/September of 1994 pursuant to the time provisions set forth in the contract. CVSD had previously entered into a contract with The Ray Group Inc. under which The Ray Group Inc. was to be the project architect and was to provide certain architectural and engineering services in connection with the design and specifications for the construc- tion of the project. Also, The Ray Group Inc. was to perform certain services on behalf of CVSD during the construction phase of the project. CVSD entered into separate prime contracts with other entities for general construction (CCI Construction Company), electrical (Warren Electrical Construction corp.), HVAC (Frey Lutz Corp.), and plumbing (Herre Brothers, Inc.). These separate prime-..contracts were also entered into in June of 1993. Mobilization and actual construction work on this project commenced in June of 1993 but certain work, including some of the work of ACAC, had to be stopped and rearranged or rescheduled because of changes to the contract documents and drawings as requested by CVSD. The work which was stopped did not recommence for approximately nine (9) months but other work under the contracts could be performed by the prime contractors, including ACAC, during this time frame. From the outset of the commencement of construction activi- ties, there were numerous problems, disputes and disagreements 2 . which arose as related to the work performed or to be performed by ACAC and the other prime contractors. These problems, disputes, and disagreements caused scheduling and coordination problems and eventually resulted in delays in the completion of work on the project. The project participants blamed each other as well as CVSD and The Ray Group Inc. for these problems and delays and a substantial portion of the blame for the problems and delays was attributed to ACAC by CVSD, The Ray Group Inc., and the other prime contractors. This history of problems, disputes, and disagreements including those related to ACAC continued throughout 1993 and through most of 1994. The originally intended substantial completion date of August 1994 could not be met and the final completion date was extended by CVSD to January of 1995 because of the delays. By November of 1994, ACAC was seriously behind the new schedule of January 1995 for the completion of its work on the project. On November 9, 1994, The Ray Group Inc. sent a letter to ACAC advising it of priority work items that needed to be completed by certain dates. The Ray Group Inc. also advised ACAC that if the priority items were not completed by the dates noted, CVSD would have the work performed and completed by another contractor and would deduct the costs related to such work from the contract amount of ACAC. A second notice letter from The Ray Group Inc. to ACAC on the priority issues was sent on November 22, 1994, which noted that the . . priority items had not been completed by the required date(s). 3 . Finally and on December 7, 1994, The Ray Group Inc. sent a letter to ACAC at the direction of CVSD advising ACAC of the intention of CVSD to terminate the contract between CVSD and ACAC pursuant to the terms and provisions of the General Conditions of the contract for the failure on the part of ACAC to complete the work in a timely fashion. In response to this notice of termination letter, ACAC commenced an action against CVSD in the Cour.t of Common Pleas for Cumberland County, Pennsylvania (No. 94-6945). The Complaint filed in that action requested the issuance of a Temporary Restraining Order and a preliminary Injunction precluding CVSD from terminating ACAC from the proj ect. The Complaint also made a demand for damages with regard to alleged breaches of the contract between ACAC and CVSD. The Court issued a Temporary Restraining Order on December 9, 1994 and after a subsequent hearing, granted ACAC's Request for a Preliminary Injunction on January 6, 1995. ACAC returned to the project and continued working on the project sporadically over the next ten (10) months. Problems, disputes, and disagreements with ACAC continued throughout this time frame and CVSD returned to Court in October of 1995 and was successful in having the Prelimi- nary Injunction dismissed. CVSD then proceeded with a formal termination of ACAC from the project. CVSD eventually engaged another site contractor to complete and correct substantial portions of the work which was to be performed by ACAC under its contract with CVSD. 4 . ACAC's action against CVSD remains open as of this date and there has been substantially no activity on the part of ACAC with regard to that action other than an initial attempt by ACAC to amend the Complaint filed in the action though even this at- tempt/request was withdrawn on behalf of ACAC. Despite the fact that the action of ACAC against The Ray Group Inc. was commenced in April of 1995, formal service of a Complaint by ACAC on The Ray Group Inc. was not made until more than a year later in June of 1996. The Ray Group Inc. filed a timely Answer to the Complaint with New Matter and a Counterclaim on July 12, 1996. A reply to the New Matter and counterclaim was filed on behalf of ACAC on July 31, 1996. The only other activity of ACAC in this action since April of 1995 was the service of a RequAst for production of Documents on counsel for The Ray Group Inc. in April of 1997. The-."Ray Group Inc. responded to this request on April 21, 1997 indicating that all documents and records of The Ray Group Inc. would be made available for inspection and copying at a date and time convenient for counsel. ACAC has never responded nor requested an opportunity to inspect the project files of The Ray Group Inc. with regard to this offer for production. The Ray Group Inc., on the other hand, served both Interroga- tories and Request for production of Documents on counsel for ACAC in March of 1997. After being given two (2) extensions of time in which to answer these discovery matters, answers were provided on behalf of ACAC on June 16, 1997. Counsel for The Ray Group Inc. 5 . . wrote to counsel for ACAC requesting more complete answers to these discovery matters under cover letters dated June 19, 1997 and August IB, 1997. Some supplemental information waS provided by counsel for ACAC though the discovery responses of ACAC were still considered to be inadequate and incomplete. There has been no activity, whatsOever, on the part of ACAC since July of 1997 in eithp.r this action or in the action commenced by ACAC against CVSD. The project itself was completed as related to the other prime contractors in or about January 1995. There remains a serious question as to whether either the documents or pertinent personnel of these other prime contractors are still in existence and/or available with regard to information related to the problems, disputes, and/or disagreements which developed on this project and which have been raised by ACAC in these actions and/or as referenced in the complaints filed by ACAC" in these actions. The documents and personnel of the other prime contrac- tors are of a critical nature in the defense of this matter since these other prime contractors either blamed ACAC o~ ACAC blamed them for being responsible for many of the problems, disputeS, and/or disagreements and the eventual delay in the completion of construction as the result of such problems. disputes, and/or disagreements. There also remains a question as to whether even the documents and personnel of ACAC involved in this project are still in existence or available because of the lapse of time and because of information indicating that ACAC is no longer conducting business. 6 In fact, the answers of ACAC to the Interrogatories of The Ray . Group Inc. confirm that at least some of the key personnel of ACAC are no longer with the company and that ACAC is without information as to the pr~sent whereabouts of such individuals. In effect, there are serious questions as to the existence and availability of ducuments and personnel of the various proj ect participants which will be needed, if not essential, in the defense of the claims and contentions of ACAC in this action. The events described by ACAC in iLs Complaint cover the time frame of 1993 through 1995 and an additional three (3) years have elapsed without any substantive activities on the part of ACAC to move this matter forward to a conclusion. Furthermore, the lapse of alm03t six (6) years is almost certain to have impacted the memory and recollec- tions of those knowledgeable individuals with regard to this project and with regard to the testimony and evidence needed by The .' Ray Group Inc. to defend against the allegations and contentions of ACAC. II. PROCEDURAL BACKGROUND In October of 199B, this case appeared on the list of inactive cases and barring some activity on the part of the Plaintiff, was scheduled to be dismissed by the Court for lack of activity. The Plaintiff, however, filed written objections to placement on the Court's List of Inactive Cases. Subsequently, on October 2B, 199B, the Court issued a Rule to show Cause why the case should not be removed from the Court's list of inactive cases. The Defendant, The Ray Group Inc., filed an Answer to Plaintiff's Objections and, 7 at the same time, filed a Motion to Dismiss for Failure to Prosecute. The Motion to DismisA was denied as duplicative of the Court's own Motion for Dismissal. The Plaintiff's Written Objections acknowledged that there has been no docket activity since July 30, 1996. Additionally, Plaintiff admits that there has been no significant activity between the parties since May, 1997 and that the Plaintiff now intends to engage new counsel and "vigorously prosecute" the matter. The Ray Group Inc., in its Answer, contends that the plain- tiff's action should be dismissed because Plaintiff has failed to diligently pursue this matter, that the plaintiff has no compelling reason or explanation for the delay and that The Ray Group Inc. has been and will be prejudiced in the defense of this action because of the delay. III. QUESTION PRESENTED Whether this lIIatter should be dielllissed for the failure of the plaintiff to actively prosecute the action? Proposed Answer: YES. IV. LEGAL ARGUMENT The facts that give rise to this matter occurred over a period of time beginning in 1993 which is over five years ago. There has been no docket activity since July of 1996 and since April of 1997, the Plaintiff has not engaged in any activity to advance this action. There is no compelling reason or explanation given by the B . plaintiff for the delay and The Ray Group Inc. has been and continues to be prejudiced in the defense of this action because of the delay. Accordingly, this action should be dismissed since the Plaintiff has effectively abandoned the action by its failure to . prosecute. In Shope v. Eaqle. _ Pa. 710 A.2d 1104 (199B), the Pennsylvania Supreme Court held that the standard to be applied for "termination for inactivity pursuant to a defendant's motion for non pros applies equally to dismissals pursuant to Rule 1901." 14., at 1105. In Jacobs v. Halloran, _ Pa, _, 710 A.2d 109B (199B), the Pennsylvania Supreme Court announced a three part test to be applied when deciding whether to dismiss an action for failure to diligently prosecute, when a defendant files a Motion to Dismiss. This decision specifically overruled Penn Pipinq. Inc. v. Insurance ComJ;lanv of North America, 529 Pa. 350, 603-'-A.2d 1006 .. (1992), which had been the controlling decision in these matters. The court stated that the effect of its decision was to return to the three part test enumerated in James Brothers v. Union Bankinq & Trust Co. of Du Bois, 432 Pa, 129, 247 A.2d 5B7 (196B). In Jacobs, the Court held that in order to "dismiss a case for inactivity pursuant to a defendant's motion for non-pros there must first be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude. Second, the plaintiff must have no compelling reason for the delay. Finally, the delay must cause actual prejudice to the defendant." Jacobs at 1103, emphasis in original. Additionally, equitable principles 9 apply. 19. In the present matter, all three conditions have been met. Accordingly, the Plaintiff's Complaint should be dismissed. A. There was il lack of due diliqence on the part of the Plaintiff to activelv prosecute this action. The facts that give rise to the allegations in the Plaintiff's Complaint occurred over the period of 1993 through 1995. This action was initiated in April of 1995. The Complaint was not served on The Ray Group Inc. until one year later, in June, 1996. There has been no docket activity since ACAC filed its Answer to New Matter and New Matter Counterclaim of The Ray Group Inc. on July 30, 1996. Since that time, the Plaintiff has engaged in limited discovery, consisting merely of a Request for Production of Documents served on counsel for The Ray Group Inc. As stated above, The Ray Group Inc. notified plaintiff's counsel that the documents would be made available for inspection and copying at the convenience of counsel. The Plaintiff never responded and made no attempt to schedule a date and time to review the documents. On the other hand, The Ray Group Inc. served Interrogatories and RequestR for Production of Documents on the Plaintiff. The Plaintiff was granted two extensions of time and eventually provided inadequate and incomplete responses to these discovery requests with the last discovery response by the Plaintiff being in May, 1997. No depositions have been conducted nor has the Plaintiff even attempted to scheduled any depositions. The trivial activities on the part of the plaintiff do not represent the type 10 . (199B). In Marino, the court held that, in addition to delay caused by "bankruptcy, liquidation, or other operation of law or in cases awaiting significant developments in the law, the court would consider other comcellinq reasons for the delay." Marino at 1111, emphasis added. In Marino, the court found that the Plaintiffs demonstrated an "unusual amount of activity not entered on the docket: the death of [Plaintiffs'] first attorney and the substitution of his partner, an attorney not known or selected by [Plaintiffs]; the taking of depositions of all the parties; the replacement of [Plaintiffs') second attorney because of [Plaintiffs'] perception that he was not moving their case forward; the difficulties encountered by [PlaintiffS'] third attorney in obtaining the case file from [Plaintiffs'] second attorney as well as difficulty in getting the second attorney to withdraw his appearance; the exchange-of letters seeking a settlement in the case; and, finally, a telephone discussion of certifying the case ready for trial." 1..d. The court, however, was careful to point out that "anyone of the cited factors would be insufficient to salvage this case from dismissal for inactivity, yet the total picture painted by this record is that of a case proceeding, albeit slowly towards disposition." 111. Furthermore, financial considerations do not present compelling reasons for delay. Mackintosh-Hemphill v. Gulf & Western, _ Pa.Super , 679 A.2d 1275 (1996). The insignificant non-docket activity in the present action contrasts sharply with the Marino case. In this action there has 12 . been no docket activity since July 30, 1996. There has been limited discovery, the latest being over one and one-half years ago. This activity is hardly the type of diligence anticipated by the courts to indicate a "compelling" reason for delay. Additionally, in its Written Objections to Placement on the Court's List of Inactive Cases, the Plaintiff, ACAC, has not raised ~ reasons for its failure to pursue this matter. The Court gave the Plaintiff the opportunity to take depositions in support if its Objections, yet ACAC has declined to conduct any depositions. Accordingly, it is evident that there is no compelling reason for ACAC's delay in pursuing this matter. The contention of counsel for ACAC that new counsel is to be retained to vigorously prosecute this action merely highlights the failure on the part of ACAC to prosecute the action in the first instance. ACAC has offered no compelling reason, whatsoever, for its delay in prosecuting this matter and this failure has clearly resulted in substantial prejudice to The Ray Group Inc. in the defense of this action. ~ The Ray Group Inc. has sustained oreludice in the defense of this action due to the delay of the plaintiff. The Ray Group Inc. has sustained and will continue to sustain prejudice in the defense of this action because of the delay in activity on the part of the plaintiff. In Jacobs, the court pronounced that "prejudice could be established by the death or absence of a material witness." Jacobs at 1103. Additionally, the Jacobs court stated that "[w] e recognize that defendants may be 13 . prejudiced by undue delays in litigation - memories fade, witnesses disappear and documents become lost or destroyed." Jacobs at 1102. Prejudice will attach not only in the death or absence of witness- es, but also when the delay causes the loss of documentary evidence or any substantial diminution in a party's ability to properly present its case. Biondillo v. Department of Transp., 674 A.2d 1175 (Pa.Cmwlth. 1996). In the present action, it has been between 3 1/2 to 5 1/2 years since the facts that allegedly give rise to this action occurred. As described above, this project was very large and involved several prime contractors. The documents and personnel of the other prime contractors are critical to the defense of this matter. Additionally, the documents and personnel of ACAC are crucial to The Ray Group Inc.'s defense. There is serious doubt as to whether many of those persons and documents are still -available. Furthermore, of those persons who may still be available, it is inescapable that their memories and recollections have diminished over the years. In fact, when The Ray Group Inc. served Interrogatories on Plaintiff requesting the employment status or last known home address of thirteen former ACAC employees, ACAC could only provide six addresses. Accordingly, it is evident that witnesses that may have significant information are no longer available. This will, undoubtedly, significantly and adversely affect The Ray Group Inc.'s ability to present a defense in this action. Not only are fundamental witnesses impossible to locate, but their memories will 14 . likely have diminished over the past five (5) years regarding key details of the project in question. Also, there are serious questions as to the existence and availability of critical documents needed in the defense of this matter. Due to the complex nature of this action, these missing items will impede The Ray Group Inc.' s ability to defend itself against the plaintiff's allegations in this action. IL..- The Plaintiff's Wri t ten Oblect ions should be denied pursuant to the local rules. On October 27, 199B, this Court issued a Rule to Show Cause, directing the Defendant to show cause why the Plaintiff's Written Objections to Being placed on the Court's List of Inactive Cases should not be granted. The Ray Group Inc. filed a timely response to the Plaintiff's Written Objections. The Court ordered that depositions needed by the plaintiff were to be completed..within 35 days. As of today's date, the Plaintiff has not taken any depositions. The Court set argument dates of January 13, 1999 and March 17, 1999 which, by agreement of counsel and approval of the Court, were continued to April 29, 1999. Pursuant to Cumberland County Rules of Procedure, Rule 210-6, a party seeking an order "shall serve a copy of the brief [in support of the motion] upon opposing counsel ... twelve (12) days before the date set for argument.... If the party seeking the order has not filed a timely brief in accordance to the time limitations of this rule, the court may deny the relief sought on that basis alone." Cumberland . . County Rules of Procedure, Rule 210-6. Rule 210-7 further states "Issues raised, but not briefed, shall be deemed abandoned." Cumberland County Rules of Procedure, Rule 210-7. The Plaintiff's 15 . brief in support of its Written Objections to Being Placed on the . Court's List of Inactive Cases should have been served upon counsel for the Defendant on or before April 16 or 19, 1999. As of this date (April 22, 1999), counsel for The Ray Group Inc. has not received a brief from or on behalf of the Plaintiff. The failure of the Plaintiff to file a brief reinforces the position of The Ray Group Inc.that the Plaintiff has not met its responsibility to pursue this matter. The Plaintiff has effec- tively deserted this action. Accordingly, the Plaintiff's Written Objections should be deemed abandoned and dismissed pursuant to the local rules. V. CONCLUSION In conclusion, there has been a significant delay by the Plaintiff in prosecuting this matter. This delay was not caused by The Ray Group Inc. There is no compelling reason for .~he delay. Finally, The Ray Group Inc. has sustained prejudice in the defense of this action. Therefore, The Ray Group Inc. respectfully requests that this Court deny Plaintiff's Written Objections to Placement on the Court's List of Inactive Cases and dismiss the Plaintiff's Complaint with prejudice based upon the plaintiff's failure to prosecute the action as required under the Pennsylvania Rules of Civil Procedure. KELLY, McLAUGHLIN & FOSTER BY, (/~~~ / R. TOMAS Me L, E RE RHONDA F. HARRIS, ESQU Attorneys for The Ray Group Inc. Dated:April 22. 1999 16 APR 2:! 1999.;J \l . KELLY, McLAUGHLIN & FOSTER BY: R. Thomas McLaughlin, Esquire Rponda F. Harris, Esquire Identification Nos. 03601/6B552 260 South Broad Street 1700 Atlantic Building philadelphia, PA 19102 (215) 790-7900 Attorneys for The Ray Group Inc. v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. NO. 95-1963 ADAMS COUNTY ASPHALT COMPANY THE RAY GROUP INC. MEMORANDUM OF LAW IN SUPPORT OF THE ANSWER OF THE RAY GROUP INC. TO ADAMS COUNTY ASPHALT COMPANY'S WRITTEN OBJECTION TO PLACEMENT ON THE COURT'S LIST OF INACTIVE CASES I. SUMMARY OF FACTS This action was commenced in April of 1995 by Adams County Aephalt Company (hereinafter "ACAC") against The Ray Group Inc. based upon allegations of the intentional interference on the part of The Ray Group Inc. with the contractual relationship between ACAC and the Cumberland Valley School District (hereinafter "CVSD"). The contract between CVSD and ACAC covered the work to be performed by ACAC in connection with the construction of a new middle school in Carlisle, Pennsylvania (hereinafter "the pro- ject") . The contract between CVSD and ACAC was entered into on June 16, 1993. Under the terms of the contract, ACAC was to be the prime contractor with regard to site work on the project. The site work included the construction of entrance ways, driveways, parking lots, site grading, landscaping, new athletic fields, etc. The total amount to be paid to ACAC under the contract was approximately $2.3 million and the site work was to be substantial- ly completed by August/september of 1994 pursuant to the time provisions set forth in the contract. CVSD had previously entered into a contract with The Ray Group Inc. under which The Ray Group Inc. was to be the project architect and was to provide certain architectural and engineering services in connection with the design and specifications for the construc- tion of the proj ect . Also, The Ray Group Inc. was to perform certain services on behalf of CVSD during the construction phase of the project. CVSD entered into separate prime contracts with other entities for general construction (CCI Construction Company), electrical (Warren Electrical Construction Corp.), HVAC (Frey Lutz corp.), and plumbing (Herre Brothers, Inc.). These separate prime-..contracts were also entered into in June of 1993. Mobilization and actual construction work on this project commenced in June of 1993 but certain work, including some of the work of ACAC, had to be stopped and rearranged or rescheduled because of changes to the contract documents and drawings as requested by CVSD. The work which was stopped did not recommence for approximately nine (9) months but other work under the contracts could be performed by the prime contractors, including ACAC, during this time frame. From the outset of the commencement of construction activi- ties, there were numerous problems, disputes and disagreements 2 . which arose as related to the work performed or to be performed by ACAC and the other prime contractors. These problems. disputes, and disagreements caused scheduling and coordination problems and eventually resulted in delays in the completion of work on the project. The project participants blamed each other as well as CVSD and The Ray Group Inc. for these problems and delays and a substantial portion of the blame for the problems and delays was attributed to ACAC by CVSD, The Ray Group Inc., and the other prime contractors. This history of problems, disputes, and disagreements including those related to ACAC continued throughout 1993 and through most of 1994. The originally intended substantial completion date of August 1994 could not be met and the final completion date was extended by CVSD to January of 1995 because of the delays. By November of 1994, ACAC was sericusly behind the new schedule of January 1995 for the completion of its work on the project. On November 9, 1994, The Ray Group Inc. sent a letter to ACAC advising it of priority work items that needed to be completed by certain dates. The Ray Group Inc. also advised ACAC that if the priority items were not completed by the dates noted, CVSD would have the work performed and completed by another contractor and would deduct the costs related to such work from the contract amount of ACAC. A second notice letter from The Ray Group Inc. to ACAC on the priority issues was sent on November 22, 1994, which noted that the priority items had not been completed by the required date (s) . 3 . Finally and on December 7, 1994, The Ray Group Inc. sent a letter to ACAC at the direction of CVSD advising ACAC of the intention of CVSD to terminate the contract between CVSD and ACAC pursuant to the terms and provisions of the General Conditions of the contract for the failure on the part of ACAC to complete the work in a timely fashion. In response to this notice of termination letter, ACAC commenced an action against CVSD in the Court of Common pleas for Cumberland County, Pennsylvania (No. 94-6945). The Complaint filed in that action requested the issuance of a Temporary Restraining Order and a Preliminary Injunction precluding CVSD from terminating ACAC from the project. The Complaint also made a demand for damages with regard to alleged br~aches of the contract between ACAC and CVSD. The Court issued a Temporary Restraining Order on December 9, 1994 and after a subsequent hearing, granted ACAC's Request for a Preliminary Injunction on January 6, 1995. ACAC returned to the project and continued working on the project sporadically over the next ten (10) months. Problems, disputes, and disagreements with ACAC continued throughout this time frame and CVSD returned to Court in October of 1995 and was successful in having the Prelimi- nary Injunction dismissed. CVSD then proceeded with a formal termination of ACAC from the project. CVSD eventually engaged another site contractor to complete and correct substantial portions of the work which was to be performed by ACAC under its contract with CVSD. 4 . ACAC's action against CVSD remains open as of this date and there has been substantially no activity on the part of ACAC with regard to that action other than an initial attempt by ACAC to amend the compla int filed in the act ion though even this at- tempt/request was withdrawn on behalf of ACAC. Despite the fact that the action of ACAC against The Ray Group Inc. was commenced in April of 1995, formal service of a Complaint by ACAC on The Ray Group Inc. was not made until more than a year later in June of 1996. The Ray Group Inc. filed a timely Answer to the Complaint with New Matter and a Counterclaim on July 12, 1996. A reply to the New Matter and Counterclaim was filed on behalf of ACAC on July 31, 1996. The only other activity of ACAC in this action since April of 1995 was the service of a Request for Production of Documents on ceunsel for The Ray Group Inc. in April of 1997. The-'.Ray Group Inc. responded to this request on April 21, 1997 indicating that all documents and records of The Ray Group Inc. would be made available for inspection and copying at a date and time convenient for counsel. ACAC has never responded nor requested an opportunity to inspect the project files of The Ray Group Inc. with regard to this offer for production. The Ray Group Inc., on the other hand, served both Interroga- tories and Request for production of Documents on counsel for ACAC in March of 1997. After being given two (2) extensions of time in which to answer these discovery matters, answers were provided on behalf of ACAC on June 16, 1997. counsel for The Ray Group Inc. 5 . wrote to counsel for ACAC requesting more complete answers to these discovery matters under cover letters dated June 19, 1997 and August 18, 1997. Some supplemental information was provided by counsel for ACAC though the discovery responses of ACAC were still considered to be inadequate and incomplete. There has been no activity, whatsoever, on the part of ACAC since July of 1997 in either this action or in the action commenced by ACAC against CVSD. The project itself was completed as related to the other prime contractors in or about January 1995. There remains a serious question as to whether either the documents or pertinent personnel of these other prime contractors are still in existence and/or available with regard to information related to the problems, disputes, and/or disagreements which developed on this project and which have been raised by ACAC in these actions and/or as referenced in the Complaints filed by ACAC" in these actions. The documents and personnel of the other prime contrac- tors are of a critical nature in the defense of this matter since these other prime contractors either blamed ACAC or ACAC blamed them for being responsible for many of the problems, disputes, and/or disagreements and the eventual delay in the completion of construction as the result of such problems, disputes, and/or disagreements. There also remains a question as to whether even the documents and personnel of ACAC involved in this project are still in existence or available because of the lapse of time and because of information indicating that ACAC is no longer conducting business. 6 . In fact, the answers of ACAC to the Interrogatories of The Ray Group Inc. confirm that at least some of the key personnel of ACAC are no longer with the company and that ACAC is without information as to the present whereabouts of such individuals. In effect, there are serious questions as to the existence and availability of documents and personnel of the various project participants which will be needed, if not essential, in the defense of the claims and contentions of ACAC in this action. The events described by ACAC in its Complaint cover the time frame of 1993 through 1995 and an additional three (3) years have elapsed without any substantive activities on the part of ACAC to move this matter forward to a conclusion. Furthermore, the lapse of almost six (6) years is almost certain to have impacted the memory and recollec- tions of those knowledgeable individuals with regard to this ~oject and with regard to the testimony and evidence needed by The Ray Group Inc. to defend against the allegations and contentions of ACAC. II. PROCEDURAL BACKGROUND In October of 199B, this case appeared on the list of inactive cases and barring some activity on the part of the Plaintiff, was scheduled to be dismissed by the Court for lack of activity. The Plaintiff, however, filed written objections to placement on the Court's List of Inactive Cases. Subsequently, on October 2B, 1998, the Court issued a Rule to Show Cause why the case should not be removed from the Court's list of inactive cases. The Defendant, The Ray Group Inc., filed an Answer to Plaintiff's Objections and, 7 . at the same time, filed a Motion to Dismiss for Failure to Prosecute. The Motion to Dismiss was denied as duplicative of the Court's own Motion for Dismissal. The Plaintiff's Written Objections acknowledged that there has been no docket activity since July 30, 1996. Additionally, Plaintiff admits that there has been no significant activity between the parties since May, 1997 and that the Plaintiff now intends to engage new counsel and "vigorously prosecute" the matter. The Ray Group Inc., in its Answer, contends that the Plain- tiff's action should be dismissed because Plaintiff has failed to diligently pursue this matter, that the Plaintiff has no compelling reason or explanation for the delay and that The Ray Group Inc. has been and will be prejudiced in the defense of this action because of the delay. III. QUESTION PRESENTED Whether this matter should be dismissed for the failure of the Plaintiff to actively prosecute the action? Proposed Answer I YES. IV. LEGAL ARGUMENT The facts that give rise to this matter occurred over a period of time beginning in 1993 which is over five years ago. There has been no docket activity since July of 1996 and since April of 1997, the Plaintiff has not engaged in any activity to advance this action. There is no compelling reason or explanation given by the B . plaint if f for the delay and The Ray Group Inc. has been and continues to be prejudiced in the defense of this action because of the delay. Accordingly, this action should be dismissed since the Plaintiff has effectively abandoned the action by its failure to prooecute. In Shope v. Eaqle, Pa. 710 A.2d 1104 (199B). the pennsylvania Supreme Court held that the standard to be applied for "termination for inactivity pursuant to a defendant's motion for non pros applies equally to dismissals pursuant to Rule 1901." .I.9.., at 1105. In Jacobs v. Halloran, _ Pa. _, 710 A.2d 109B (199B), the Pennsylvania Supreme Court announced a three part test to be applied when deciding whether to dismiss an action for failure to diligently prosecute, when a defendant files a Motion to Dismiss. This decision specifically overruled Penn Pipinq. Inc. v. IRsurance Company of North America, 529 Pa, 350, 603--:A.2d 1006 (1992), which had been the controlling decision in these matters. The court stated that the effect of its decision was to return to the three part test enumerated in James Brothers v. Union Bankinq & Trust Co. of Du Bois, 432 Pa, 129, 247 A.2d 5B7 (196B). In Jacobs, the Court held that in order to "dismiss a case for inactivity pursuant to a defendant's motion for non-pros there must first be a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude. Second, tile plaintiff must have no compelling reason for the delay. Finally, the delay must cause actual prejudice to the defendant." Jacobs at 1103, emphasis in original. Additionally, equitable principles 9 . apply. rg. In the present matter, all three conditions have been met. Accordingly, the Plaintiff's Complaint should be dismissed. A. There was il lack of due diliqence on the part of the plaintiff to activelv prosecute this action. The facts that give rise to the allegations in the Plaintiff's Complaint occurred over the period of 1993 through 1995. This action was initiated in April of 1995. The Complaint was not served on The Ray Group Inc. until one year later, in June, 1996. There has been no docket activity since ACAC filed its Answer to New Matter and New Matter counterclaim of The Ray Group Inc. on July 30, 1996. Since that time, the Plaintiff has engaged in limited discovery, consisting merely of a Request for Production of Documents served on counsel for The Ray Group Inc. As stated above, The Ray Group Inc. notified plaintiff's counsel that the dQcuments would be made available for inspection and copying at the convenience of counsel. The plaintiff never responded and made no attempt to schedule a date and time to review the documents. On the oth",r hand, The Ray Group Inc. served Interrogatories and Requests for production of Documents on the Plaintiff. The Plaintiff was granted two extensions of time and eventually provided inadequate and incomplete responses to these discovery requests with the last discovery response by the Plaintiff being in May, 1997. No depositions have been conducted nor has the Plaintiff even attempted to scheduled any depositions. The trivial activities on the part of the plaintiff do not represent the type 10 . of significant activity that is required to overcome the Plain- tiff's obligation to diligently prosecute this matter. While Jacobs ruled that the two year lack of docket activity will no longer automatically give rise to the presumption of prejudice, the Plaintiff. nonetheless, has an affirmative duty to diligently prosecute the action. Jacobs, 710 A.2d at 1103. ~ also: Mackintosh-Hemohill v. Gulf & Western, _ Pa.Super. _, 679 A.2d 1275 (1996). "The law is well settled that it is plaintiff, not defendant, who bears the risk of failing to act within a reasonable time to move a case along." Shope at 110B. In the present matter, the Plaintiff has allowed over two years to elapse since the last docket entry. Additionally, the Plaintiff has made no attempt to review or inspect the documents that are relevant to this matter. With the exception of providing limited information in response to the defendant's "'discovery requests, the plaintiff has done absolutely nothing to advance this matter except for serving discovery, which it never bothered to pursue. Considering that this matter was commenced over three years ago, the Plaintiff has clearly failed to diligently prosecute this matter, contrary to its obligation to move this matter toward a conclusion. ~ There was no comp'ellinq reason for the delav. Although the Jacobs decision rejected the Penn PiDinC/ presumption of prejudice after a two year delay in docket entries, the courts still seek a "compelling reason for the delay" in advancing a case. Marino v. Hackman. Pa. 710 A.2d 1108 11 . (199B) . In Marino, the court held that, in addition to delay caused by "bankruptcy, liquidation, or other operation of law or in cases awaiting significant developments in the law, the court would consider other compellinG reasons for the delay." Marino at 1111, emphasis added. In Marino, the court found that the Plaintiffs demonstrated an "unusual amount of activity not entered on the docket: the death of [Plaintiffs'] first attorney and the substitution of his partner, an attorney not known or selected by [Plaintiffs]; the taking of depositions of all the parties; the replacement of [Plaintiffs'] second attorney because of [Plaintiffs'] perception that he was not moving their case forward; the difficulties encountered by [Plaintiffs'] third attorney in obtaining the case file from [Plaintiffs'] second attorney as well as difficulty in getting the second attorney to withdraw his appearance; the exchange "of letters seeking a settlement in the case; and, finally, a telephone discussion of certifying the case ready for trial." 19. The court, however, was careful to point out that "anyone of the cited factors would be insufficient to salvage this case from dismissal for inactivity, yet the total picture painted by this record is that of a case proceeding, albeit slowly towards disposition." 19. Furthermore, financial considerations do not present compelling reasons for delay. Mackintosh-Hemphill v. Gulf & Western, Pa.Super _, 679 A.2d 1275 (1996). The insignificant non-docket activity in the present action contrasts sharply with the Marino case. In this action there has 12 . been no docket activity since July 30, 1996. There has been limited discovery, the latest being over one and one-half years ago. This activity is hardly the type of diligence anticipated by the courts to indicate a "compelling" reason for delay. Additionally. in its Written Objections to placement on the Court's List of Inactive Cases, the plaintiff, ACAC, has not raised ~ reasons for its failure to pursue this matter. The Court gave the Plaintiff the opportunity to take depositions in support if its Objections, yet ACAC has declined to conduct any depositions. Accordingly, it is evident that there is no compelling reason for ACAC's delay in pursuing this matter. The contention of counsel for ACAC that new counsel is to be retained to vigorously prosecute this action merely highlights the failure on the part of ACAC to prosecute the action in the first instance. ACAC has offered no compelling reason, whatsoever, for its delay in prosecuting this matter and this failure has clearly resulted in substantial prejUdice to The Ray Group Inc. in the defense of this action. ~ The Rav GrOUD Inc. has sustained preludice in the defense of this action due to the delay of the plaintiff. The Ray Group Inc. has sustained and will continue to sustain prejudice in the defense of this action because of the delay in activity on the part of the plaintiff. In Jacobs, the court pronounced that "prejudice could be established by the death or absence of a material witness." Jacobs at 1103. Additionally, the Jacobs court stated that "[w] e recognize that defendants may be 13 . prejudiced by undue delays in litigation - memories fade, witnesses disappear and documents become lost or destroyed." Jacobs at 1102. Prejudice will attach not only in the death or absence of witness- es, but also when the delay causes the loss of documentary evidence or any substantial diminution in a party's ability to properly present its case. Biondillo v. Department of Transp., 674 A.2d 1175 (Pa.Cmwlth. 1996). In the present action, it has been between 3 1/2 to 5 1/2 years since the facts that allegedly give rise to this action occurred. As described above, this project was very large and involved several prime contractors. The documents and personnel of the other prime contractors are critical to the defense of this matter. Additionally, the documents and personnel of ACAC are crucial to The Ray Group Inc.'s defense. There is serious doubt as to whether many of those persons and documents are still.available. Furthermore, of those persons who may still be available, it is inescapable that their memories and recollections have diminished over the years. In fact, when The Ray Group Inc. served Interrogatories on Plaintiff requesting the employment status or last known home address of thirteen former ACAC employees, ACAC could only provide six addresses. Accordingly, it is evident that witnesses that may have significant information are no longer available. This will, undoubtedly, significantly and adversely affect The Ray Group Inc.'s ability to present a defense in this action. Not only are fundamental witneases impossible to locate, but their memories will 14 . brief in support Ot its Written Objections to Being Placed on the Court's List of Inactive Cases should have been served upon counsel . for the Defendant on or before April 16 or 19, 1999. As of this date (April 22, 1999), counsel for The Ray Group Inc. has not received a brief from or on behalf of the Plaintiff. The failure of the plaintiff to file a brief reinforces the position of The Ray Group Inc.that the Plaintiff has not met its responsibility to pursue this matter. The Plaintiff has effec- tively deserted this action. Accordingly, the Plaintiff's Written Objections should be deemed abandoned and dismissed pursuant to the local rules. V. CONCLUSION In conclusion, there has been a significant delay by the Plaintiff in prosecuting this matter. This delay was not caused by The Ray Group Inc. There is no compelling reason for 'che delay. Finally, The Ray Group Inc. has sustained prejudice in the defense of this action. Therefore, The Ray Group Inc. respectfully requests that this Court deny Plaintiff's Written objections to placement on the Court's List of Inactive Cases and dismiss the Plaintiff's Complaint with prejudice based upon the plaintiff's failure to prosecute the action as required under the Pennsylvania Rules of Civil Procedure. KELLY, McLAUGHLIN & FOSTER d ~,??~ BY: ' ~ /R. ~~ . ~RE RHONDA F. HARRIS, ESQU~E Attorneys for The Ray Group Inc. Dated:April 22. 1999 16 6. Denied as stated. It is admi t ted that there has been no docket activity in this matter since July 31, 1996 and that only a limited amount of other activity has occurred since that time as more specifically set forth below. 7. Admitted. 8. and 9. Denied as stated. It is admitted that on or about March 14, 1997, The Ray Group Inc. served Interrogatories and Request for Production of Documents on counsel fOl' ACAC and The Ray Group Inc. agreed to an extension of time for responses on the part of ACAC to these discovery matters. Initial responses to these discovery matters were provided by ACAC on or about June 17, 1997. Counsel for The Ray Group Inc. notified counsel for ACAC that the discovery responses of ACAC were nonresponsive and/o,,' inadequate and requested ACAC to provide supplemental answers to these discovery matters and a true and correct copy of the letter from counsel for The Ray Group Inc. to counsel for ACAC dated June 19, 1997 is attached hereto, made a part hereof, and marked Exhibit "A". Supplemental responses were submitted by counsel for ACAC with regard to these discovery matters but, again, the supplemental responses were nonresponsive and/or inadequate and a true and correct copy of the letter of counsel for The Ray Group Inc. setting forth such deficiencies (and dated August 1B, 1997) is attached hereto, made a part hereof, and marked Exhibit "B". 10. Denied as stated. It is avered, on the contrary, that there has been no activity between the parties since the summer of 1997. As to conversat ions between counsel for ACAC and Mr. Mumma and 2 l'illiOl.l as to the contents and accuracy of these conversations, The Ray Group Inc., after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of these averments and, therefore, said averments are denied and strict proof thereof is demanded. NEW MATTER 11. Prior to the commencement of this action and on or about December 9, 1994, ACAC had commenced a separate action against the Cumberland Valley school District with regard to construction activities of ACAC pursuant to a contract between ACAC and the Cumberland Valley School District for the performance of site work and concrete work connected with the construction of the Cumberland Valley Middle School project in Mechanicsburg, Pennsylvania (in the Court of Common Pleas of Cumberland county, Penn5ylvania Civil Action No. 94- 06945) and that action involves substantially the same factual averments set forth and alleged in the instant action. 12. Though there was substantial activities in that action through October, 1995, there has been no activity of any significance taken by or on behalf of ACAC since that time and the limited activity which has been taken by ACAC was ultimately withdrawn by ACAC and a true and correct copy of the docket entries for that action are attached hereto, made a part hereof, and marked Exhibit "C". 13. An additional legal action involving work performed on the project in question was commenced by Warren Electrical Company 3 151H01.l (another contractor on the project) against the Cumberland Valley School District (in the Court of Common Pleas of Cumberland county, pennsylvania Civil Action No. 97-00305) on or about January 17, 1997. 14. On or about December 2, 1997, the Cumberland Valley School District filed a Praecipe for Writ to Join Additional Defendants including Adams County Asphalt company in the action commenced by Warren Electrical Company referenced above. 15. On or about December 8, 1997, the office of the Sheriff of Dauphin county, Pennsylvania attempted to serve the Writ of Summons in the Warren Electrical Company action on Adams County Asphalt Company at the last known address of Adams County ASFhalt Company but the Sheriff was unable to serve the Writ and was advised that Adams County Asphalt Company was "out of business" and a true and correct copy of the Sheriff's return with regard to attempts to serve the Writ of Summons is attached hereto, made a part hereof, and mal"ked Exhibit 11011. 16. Despite the commencement of this action in April of 1995, it was not until more than one (1) year later (on June 17, 1996) that the plaintiff filed a Praecipe To Reinstate Complaint with the eventual service of the Complaint on The Ray Group Inc. on June 26, 1996. See docket entries which are attached hereto, made a part hereof, and marked Exhibit "E". 4 lr.8401,1 SUITE lIOO Ill!O W Or.IIHAN1'OWN' (lllcr: PLYHOIJTII ~lEr.:TINCl H\ IU4U1N0r1U Tl!LEI'1I0N'r.: lUlU) l)'U'7HOU I~x: jtJlO} 114l-tHOU KELL Y. ~ICL\UGHll" & FOSTER .\TTOIIN IW", AT l.^W 17t)() (\-rI.^t'4TIC~ IJIlILIJINCJ UUt) SUllnl IhllMU SrllEET PllILAUY.I.I'III^ 1"~NNHVI~'^NI^ HlI01H')l)OL! r'.I.I~I'llll~1': 11.!I:')J 7UO.71l0ll I'AX 1l!Ir.l ""~.OH7" SUITE llQU noo lI^DDON AVEtlUr;: COLLINmtWOOD, NJ 00100.1000 T~L"'1I0N" 1000) noo'OIoo FAx, IlIOOI B11ol'4L!OO June 19. 1997 Oun I'll.., IJ442DPIC l~J. I) II ;ll J CV /. H. TIIOH"~ ~kL,,!:nIlLI:-I DIRECT DIAL (Ulal 7DO'1IlCI1 He: Adams County Asphalt Company,.. The Ray Group Inc. CCP Cumberland County. Pa, No. 95-1963 Renee Kilgarriff, Esquire COHEN & HUNTINGTON 1515 Market Street, Suite 818 Philadelphia. PA 19102 Dear Ms. Kilgarriff: -' We are in receipt of your leller of June 16. 1997 which referenced enclosures of the Answers of Adams County Asphalt Company to the Interrogatories and Requesls for Production of Documents of The Ray Group Inc. in connection with rhe above-captioned action. Initially, we should advise you lhatthe only enclosures were lWO (2) sets of the Answers of Adams County Asphalt Company 10 the Interrogatories of The Ray Group Inc. The enclosures did nOI include the Answers of Adams Counly Asphalt Company to the Requesls for Production of Documents. As such. we request that you provide us with a copy of the Answers of Adams County Asphalt Company to the Requests for Production of Documents. As to the Answers of Adams County Asphalt Company 10 Ihe Interrogalories of The Ray Group Inc.. we consider the Answers to be in mOSl part non-responsive and/or inadequale. Also, we consider your client's objections to certain of the Interrogatories to be without merit and inconsistent with the Pennsylvania Rules of Civil Procedure wilh regard to discoverable mailers. Furthennore.itls somewhat incomprehenslble lhat your client is unable 10 provide any infonnalion at Ihis time with regard to hs alleged damages/claims particularly in view of the facllhatthis action was commenced by your client over two (2) years ago. Finally. we arc both surprised as well as disappointed by the receipt of unresponsive answers to discovery particularly after having granted repeated requests for extensions of time in which to answer such discovery. We request that your client reconsider its present objections and/or failure to provide full and complete Answers 10 the Inlerrogatories of The Ray Group Inc. In particular (bUl not to the exclusion of other mailers). we reference the follOWing Interrogalories: 1146111 KELLY. MCLAUGHLIN & Fe rER ATTOR,.,EYS ^T'LAw Renee KlIgarriff. Esquire June 19. 1997 Page 2 I. Interrogatory #2 (and its subpartS)- The information on prior and other projects is not only relevant but ar a minimum may lead to relevant information with regard to a course of conduct on the part of your client that may be substantially the same or similar to that followed by your client on this project. Therefore. we consider such malters to be appropriate areas of inquiry under the discovery rules and we intend to pursue these areas of inquiry as pall of formal discovery and we will file an appropriate MOllon to Compel such discovery should your client persist in its refusal to provide su~h information. 2. Interrogatory #3 . [ncomplete answer but we understand that you will provide the balance of information requested in the near future. -' 3. Interrogatory #5 - General conclusion statements are not responsive to the request for a description of the malters andlor activities of such entities as being alleged by Adams County Asphalt Company. Also. no information is provided as to the nature and extent of alleged damages (at least as of the present time) attributed by Adams County Asphalt Company to such entities. 4. Interrogatories #6 through #8 - These are solely related to expert witnesses and we will proceed as required should there be an unreasonable delay supplementing the answers to these Interrogatories. 5. Interrogatory #9 . We do not consider the answer to this Interrogatory as responsive since it simply references those general" allegations set fOllh in the Complaint whereas we have requested information as to the factual hasis for such allegations. Also. we are entitled under the Pennsylvania Rules of Civil Procedure to be provided with the identity of those iriufviduals who will testify with regard to such alleged facts so that we may proceed to notice and schedule the depositions of such individuals.. Your client has had over two (2) years to formulate at least some trial strategy and the objection on this basis is unwarrl\llled and without merit. 6. - Tnterrogatory #10 . As noted above. it has been over two (2) years since your client's commencement of this action and we are entitled to be provided with the information available to date with regard to the nature and extent of alleged damages being claimed by your client along with any and all suppolling information and the identification of witnesses with regard to such alleged damages. Your client's Answer to this Interrogato- ry is clearly unresponsive and prevents us from proceeding with other matters of formal discovery on the damage issues in our preparations for the defense of this matter at trial. 11...11 SUITE UOO nuo W. GERMANTOWN PIBE PLYHOUTII ~EI:TINo. PA 104(1lNOOfJ TELl!:rIlO"'" 10101 041'7000 FAX: 10101 O.lI'l!lOO KEu.. Y. MCL\UGHLIN & FOSTER "..,.ORNr.V9 Ar I.AW 1700 "\TLAN'rtc IlUILDINO COO SOUTII IhlOAU STJI!r;T PIIILAIJr;LI'IIIA. PY.NNHYI.\'ANIA IUIOL!.~nnu SUIT~ uou uoo HADnoN AV!NIJI'; COI.LINIlItWOOO, NJ OOlOO'lUOO TELI!:rIlO"I!:: 10001 11<10.0100 """ :~,:' :::::=; l~ \fUX '"' IJl}1 \.\ TfLEJ'1I0Nr. (Ul151 71l0'7U(}O I~x IUI151 nun.on70 Il. TnOMhS ~IcL,\UGnLIN DIR~CT DIAL IU10) 700'70120 August 18. 1997 Re: Adams County Asphalt Company v. The Ray Group Inc. CCP Cumberland County. Pa, No. 95-1963 Jeffrey M. Viola. Esquire COHEN & HUNTINGTON ISIS Market Street. Suite 818 Philadelphia. PA 19102 Dear Mr. Viola: -' We are in receipt of your leller and unverified Supplemental Responses of Adams County Asphalt Company to the First Set of Interrogatories of The Ray Group Inc. in connection with the above captioned action. We initially thank you for this supplementation though it is with the understanding that we do not consider the supplementation to be complete nor do we waive any right on the part of The Ray Group Inc. to prepare and file a Motion to Compel more specific answers to such Interrogatories. In fact. we request funher supplementation of the answers of Adams County Asphalt Company and/or the production for inspection and copying of those documents and records which contain any infonnation. whatsoever. responsive to the Interrogatories. [n panicular but not to the exclusion of other matters. our comments on the Answers and Supplemental Answers of Adams COUnty Asphalt Company are as.I,?lIows: I. Interrogatory #2 (and its sub-pailS) - we request the production for inspection and copying of the project files of Adams COUnty Asphalt Company for each of the projects identified in your Supplemental Resppnse to Interrogatory #2 as well as (he production for inspection and copying of any and all documents which contain any infonnation. whatsoever. as (0 lhe claims submitted by Adams CouiitfAsphalt Company for additional time and compensation on those projects noted on pages #4 and #S of the Supplemental Response. Kindly advise us in lhe event your client is unwilling 10 produce lhese project files and materials so lhat we may proceed to request the intervention of the Coun in any such dispute. Otherwise. we request your advice as to dates and times during lhe latter pan of September 1997 which would be convenient to schedule this production of documents for inspection and copying. mUll KELLY. ~fcLAUOHUN & r 'TER ^nOIlN'EVS ^i LAW Jeffrey M. Viola. Esquire August 18. 1997 Page ~ 2. InterrogalOry #3 . we are still awaiting the receipt of the balance of infonnation requested in this Interrogatory which your client previously indicated wuuld be provided in the near future. 3. InteITogalOry #5 - the Supplemental Response of Adams County Asphalt Company to this Imerrogatory continues to be incomplete since it provides no specific infonnation and/or amounts as to alleged damages and/or extra expenses and no documents or individuals are identified in the response to the examples set fonh in the Supplemental Response. 4. InterrogalOry #9 - again. no documents or individuals are identified in the Supplemental Response in support of the matters set forth in the Supplemental Response. 5. Interrogatory #10 - though Ihe Supplemental Response provides a description of the consequential damages being alleged by Adams County Asphalt Company. it does not provide any infonnadon as to the nature. extem. and amount of alleged damages being claimed by Adams County Asphalt Company nor does it provide identification of witnesses and/or documentation in support of any alleged damages. -" 6. As related to the original Answer uf Adams County Asphalt Company as well as the Supplemental Responses of Adams Coumy Asphalt Company to the Interrogatories of The Ray Group Inc.. we request your advice with regard to the production for inspection and copying of any and all pertinent documents. records. etc. as related to the projects/claims in question as well as other projects/claims referenced by Adams COUnty Asphalt Company. Depending upon the outcome of the inspection of such documents. records. etc. we will advise you of those discovery matters still in dispute in an atlemptto resolve such discovery disputes as between counsel rather than by way of intervention of the COUrt. Also. we ~jll contact you after our completion of the review of materials produced on behalf of your client so as to arrange for mutually convenient dates and times 10 proceed with the scheduling of depositions of personnel of Adams County Asphalt Company including Mr. Mumma. Since it now appears that your client is unwilling to voluntarily dismiss this nction as previously requested. t~i~ _ will constitute further fonnal notice on behalf of The Ray Group Inc. that appropriate action will be taken against both your client and your linn pursuant to 42 Pa. C.S.A. 92503 (9) and/or the "Dragonnetti" statute. 42 Pa. C.S.A. 98351 - 8354 and/or for the intentional interference with the contractual relationships between The Cumberland Valley School District and The Ray Group Inc. Such action will seek recovery of any and all consequential damages sustained by The Ray Group Inc. as the result of the conduct of your client and/or linn plus punitive damages as well as the recovery of all counsel fees and costs involved in the defense of Ihe above captioned action. 119\88 I PYS510 Cumberland county Prothonotary's Office Page 1 Civil Case Inquiry 1994-06945 ADAMS COUNTY ASPHALT COMPANY (VS) CUMBERLAND VALLEY SCHOOL DIST Reference No..: Filed........: 12/09/1994 Case Type.....: COMPLAINT - EOUITY Time..!......: 12:23 Judgment......: .00 Execut on Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Sat/Dis/Gntd.. 0/00/0000 Jur~ Trial.... Hig er court 1 50 HBG 1995 Hi er Court 2 ...............**...................................... ........................ General Index Attorney Info ADAMS COUNTY ASPHALT COMPANY PLAINTIFF COHEN ROY S 614 NORTH FRONT STREET HARRISBURG PA 17105 CUMBERLAND VALLEY SCHOOL DEFENDANT SNELBAKER RICHARD C DISTRICT 6746 CARLISLE PIKE MECHANICSBURG PA 17055 1796 ................................................................................ . Date Entries · ..............**....................................................**.......... 12/09/94 12/09/94 12/09/94 12/09/94 12/112/94 12 13/94 12/14/94 12122/94 12/29/94 011103/95 01 06/95 01/11/95 01"1117/95 01 17/95 01/17/95 01/117/95 01 19/95 01/25/95 01/130/95 02 01/95 02/07195 02123/95 04/17/95 041117/95 04 17/95 04/18/95 04/24/95 05/01/95 051104/95 05 26/95 OS/26/95 06/01/95 06/14/95 06/27/95 09/11/95 09/12/95 COMPLAINT - EOUITY MOTION FOR INJUNCTION ROY S COHEN ESO AFFIDAVIT OF ROBERT M MUMMA ORDER OF COURT EDGAR B BAYLEY JUDGE BOND ENTERED IN THE AMOUNT OF $10000.00 BY PLAINTIFF CK 101312 MOTION OF DEFENDANT CUMBERLAND VALLEY SCHOOL DISTRICT FOR A PRO- TECTIVE ORDER AND STAY OF DEPOSITIONS AND ORDER EDGAR B BAYLEY J ORDER OF COURT EDGAR B BAYLEY JUDGE ACCEPTANCE OF SERVICE BY RICHARD C SNELBAKER DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT TRANSCRIPT LODGED ORDER OF COURT BY EDGAR B BAYLEY JUDGE NOTICE OF APPEAL (SUPERIOR CoURTI RICHARD C SNELBAKER ESQ ORDER FOR TRANSCRIPT RICHARD C SUELBAKER ESO PRAECIPE TO ATTACH (VERIFICATIONI ROY S COHEN ESO ORDER OF COURT EDGAR B BAYLEY JUDGE ANSWER PLAINTIFF ADAMS COUNTY ASPHALT COMPANY TO DEFENDANT CUMBERLAND VALLEY SCHOOL DISTRICT'S PRELIMINARY OBJECTIONS TRANSCRIPT FILED EDGAR B BAYLEY JUDGE SURETY BOND IN THE SUM OF $250 000.00 FROM ADAMS COUNTY ASPHALT COMPANY (THE MOUNTBATTEN SURETY CO INC - ORIGINAL IN PROTHY SAFE) SUPERIOR COURT OF PENNSYLVANIA OFFICIAL DOCKET * 50 HBG 1995 DEFENDANT'S CONCISE STATEMENT OF MATTERS COMPLAINED OF TRANSCRIPT LODGED TRANSCRIPT OF PROCEEDINGS FILED EDGAR B BAYLEY JUDGE IN RE OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 EDGAR B BAYLEY JUDGE AMENDED COMPLAINT AFFIDAVIT ROBERT M MUMMA MOTION FOR INJUNCTION AND ORDER BY EDGAR B BAYLEY JUDGE HEARING ON INJUNCTION SCHEDULED 4/25/95 2:30 P.M. IN COURTROOM 2 ORDER OF COURT EDGAR B BAYLEY JUDGE HEARING RESCHEDULED FOR 4/27/95 1:30 P.M. CR *2 APPEAL DISCONTINUED - NOTICE FROM SUPERIOR COURT ORDER OF COURT - PETITION FOR RELIEF DISMISSEO BY JUDGE EDGAR B BAYLEY - COPIES MAILED 5/1/95 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT ANSWER OF PLAINTIFF ADAMS COUNTY ASPHALT COMPANY TO DEFENDANT CUMBERLAND VALLEY SCHOOL DISTRICT'S PRELIMINARY OBJECTIONS PLAINTIFF'S MOTION FOR LEAVE TO AMEND ITS COMPLAINT ORDER OF COURT EDGAR B BAYLEY JUDGE - PLFF'S MOTION TO AMEND ITS COMPLAINT-RULE ENTERED AGAINST DEFT SHOW CAUSE WHY ADAMS COUNTY ASPHALT CO SHOULD NOT BE GRANTED TO AMEND ITS COMPLAINT TO ADD TWO COUNTS. RULE RETURNABLE 15 DAYS AFTER SERVICE DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND ITS COMPLAINT AND RULE TO SHOW CAUSE DATED JUNE 1 1995 PLAINTIFF ADAMS COUNTY ASPHALT COMPANY'S REPLY TO DEFENDANT'S NEW MATTER PETITION TO DISSOLVE TEMPORARY AND PRELIMINARY INJUNCTIONS ORDER OF COURT EDGAR B BAYLEY JUDGE 9/12/95 RULE IS ISSUED ON RESPONDENT-PLAINTIFF TO SHOW CAUSE WHY RELIEF SHOULD NOT BE GRANTED - RULE RETURNABLE AT HEARING ON 9/22/95 8:30 AM IN COURT ROOM NO #2 - CERTIFIED COPY OF THIS ORDER PYS5io Cumberland County prothonotary's office page 2 Civil Case Inquiry 1994-06945 ADAMS COUNTY ASPHALT COMPANY (VS) CUMBERLAND VALLEY SCHOOL DIST Reference No..: Filed........: 12/09/1994 Case Type.....: COMPLAINT - EQUITY Time..!......: 12123 Judgment......: .00 Execut on Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Sat/Dis/Gntd.. 0/00/0000 JurR Trial.... Hi~ er Court 1 50 HBG 1995 Hi er Court 2 SHALL SERVE AS RULE - SERVICE OF ORDER AND PE ITION SHALL BE MADE UPON ATTYS BY FIRST CLASS MAIL 09/20/95 ORDER OF COURT BY EDGAR B BAYLEY JUDGE 9119195 REQUEST OF COUNSEL FOR CONTINUANCE OF HEARING SCHEDULED FOR 9/22/95 OVER OBJECTION OF COUNSEL FOR CUMB VALLEY SCH DIST - HEARING IS RESCHEDULED FOR COURTROOM 12 MONDAY 10/2/95 lO/02/95 RESPONSE OF ADAMS COUNTY ASPHALT COMPANY TO THE PETITION OF CUMBERLAND VALLEY SCHOOL DISTRICT TO DISSOLVE TEMPORARY AND PRELIMINARY INJUNCTIONS TRANSCRIPT FILED = EDGAR B BAYLEY JUDGE- (ROBERT M MUMMA II) TRANSCRIPT LODGED - TESTIMONY OF ROBERT M MUMMA II ORDER OF COURT EDGAR B BAYLEY JUDGE 10/11/95 HEARING SHALL COMMENCE 10/19/95 B:45 AM TRANSCRIPT FILED TESTIMONY OF ROBERT M MUMMA II TRANSCRIPT LODGED PROCEEDINGS HELD 10/6195 EDGAR B BAYLEY JUDGE TRANSCRIPT FILED - EDGAR B BAYLEY JUDGE ORDER OF COURT EDGAR B BAYLEY JUDGE IN RE: PETITION TO DISSOLVE PRELIMINARY INJUNCTION 10/23/95 PRELIMINARY INJUNCTION ISSUED 116/95 IS DISSOLVED MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS PURSUANT TO RCP NO ~a5~~A) 4/2/97 RULE ISSUED UPON DEFENDANT SHOW CAUSE WHY RELIEF REQ SHOULD NOT BE GRANTED RULE RETURNABLE WITHIN 20 DAYS OF SERVICE J WESLEY OLER JR JUDGE COPIES MAILED 4/4/97 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS PRAECIPE FOR LISTING CASE FOR ARGUMENT BY JEFFREY M VIOLA ESQ PLAINTIFF'S MOTION TO AMEND ITS COMPLAINT ...........**................**................................................. * - Escrow Information * * Fees & Debits Baa Bal Pvmts/Ad1 End Bal * ..........**....................,...............,.........**.................... 10/05/95 10/05/95 10/11/95 10/12195 10/16/95 10/23/95 10/23/95 03/31/97 04/03/97 04116/97 09/11/97 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 10000.00 10000.00 .00 30.00 30.00 .00 ------------------------ ------------ 10075.50 10075.50 .00 **................**.............****............***...***....*..............*** * End of Case Information * ....................**.....**.....................................**..*...***... COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE BOND APPEAL PYB510 1995-01963 ADAMS Cumberland County Prothonotary's Office page Civil Case Inquiry COUNTY ASPHALT CO (VS) RAY GROUP THE 1 Reference No..: Fii1ed........! 4/17{S199355 Case Tx~e.....: COMPLAINT 00 ix~~utlon'Dat~ 0/00/0600 ~~~g~eAB81gned; OLER J WESLEY JR Sat/Dis/Gntd.. 0/00/0000 JU~ Trial.... Hi~ er Court 1 H er Court 2 .w.....**..................**.........................* ....................**.. General Index Attorney Info ADAMS COUNTY ASPHALT COMPANY PLAINTIFF COHEN ROY S 614 NORTH FRONT STREET HARRISBURG PA 17104 RAY GROUP THE DEFENDANT MCLAUGHLIN R THOMAS 127 EAST ORANGE STREET LANCASTER PA 17602 ....**..................................................*.***....*...*....****** ;, Date Entries * *..*.....*.............*.*.*...........*.....*.......*....*.*.*.**.......*.*.*** COMPLAINT - CIVIL ACTION PRAECIPE TO REINSTATE COMPLAINT - BY RENEE KILGARRIFF ESQ SHERIFF'S RETURN FILED Litigant.: RAY GROUP THE SERVED : 6/26/96 DATE RETD: 7/10/96 County Nm: LANCASTER Costs....: 562.60 Pd By: COHEN & HUNTINGTOMt PC 07/03/1996 ENTRY OF APPEARANCE FOR DEFENDANT BY R THOl'll\S MCLAUGHLIN ESe ANSWER OF THE RAY GROUP INC TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NEW MATTER-COUNTERCLAIM PURSUANT TO PA RCP 2256 ANSWER TO NEW MATTER AND NEW MATTER-COUNTERCLAIM RULE TO SHOW CAUSE 10/27/98 OBJECTION TO PLACEMENT ON COURT'S LIST OF INACTIVE CASES - IN RE HEARING WEDNESDAY l/13/99 AT 2:30 PM IN COURTROOM NO 1 J WESLEY OLER JR JUDGE COPIES MAILED 10/28/98 11/02/98 ORDER OF COURT - DATED 10/27/98 - IN RE PURGE LIST - CASE WILL NOT BE PURGED AT THIS TIME CONDITIONED UPON FILING OF PETITION AND PROPOSED RULE - BY J WESLEY OLER JR J - COPIES BY THE COURT ...*....*.*..*.......*.****...........*..*......*............................... . Escrow Information · . Fees & Debits Bea Bal Pvmts/Ad1 End Ba1 · ................................,........,......,.....*.*......*.*.******......* COMPLAINT TAX ON CMPLT , SETTLEMENT JCP FEE 04117/95 06/17196 07/03/96 07/05/96 07/12/96 07/31/96 10128198 -' 35.00 .50 5.00 5.00 35.00 .50 5.00 5.00 .00 .00 .00 .00 45.50 45.50 .00 .....*..*...........*..........*.*.............*...........................**.*. · End of Case Information · ...*......................................................................***... TAUl:: COPY Ffim..1 RECORD 1:1 II' ,"i,,, ;'1'1 \';,'"'r,''' 1'\(" ""',. 'I'" my I'"nd . -..' '...' ", '. ...IL... ',' .u . li, . ,'It', f' "1 ,,: ~ t' " ,.-. 1 i ...,,,';,;;:,,, p't ' I ~ ... ~ ..t.o ." . ,~,'. .. ..'. .. '.' lrw,l, I',,, l.'t ,. Il1i;; 1r:: ",,1 ;:.'III-v<"....~ H) <;r ___l\.lll t (,~, ))td'I'I.... A P"1(f' , I , Prothonotary ~) n .0 0 s; <" -., C- -J ~1:1 c:: i!:i [!Jt! \ :.:: ;~~(- - -l " (I ~ . .J ~l: -0 .1- ....;. -' ,1(') ,_~ c r:.1 t.) "jm ';'--1 .. '.~;! .' :J1 ~ -, (J1 '"" "'0' KELLY, McLAUGHLIN & FOSTER BY, R. THOMAS McLAUGHLIN, ESQUIRE Identification No. 03601 1700 Atlantic Building 260 South Broad Street Philadelphia, PA 19102 (215) 790-7900 ADMAS COUNTY ASPHALT COMPANY Plaint if f, Attorney for The Ray Group, Inc. CUMBERLAND COUNTY COURT OF COMMON PLEAS v. CIVIL ACTION THE RAY GROUP Defendant, NO. 95-1963 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of The Ray Group, Inc. in connection with the above-captioned matter. KELLY, McLAUGHLIN & FOSTER ll21n4.1 ...~ :OJ;;' l~ KELLY. McLAUGHLIN & FOSTER AnOftNIEYS AT LAw '700 ATLANTIC BUILDING alo SOUTH BROAD STREET PHILADELPHIA. PENNSYLVANIA ,g102 - 121lS1780..,800 ,'~ ~. r'~r'i) o?r~c~ r'\\ . " ',''','-11,,( (" II" lI't _"J ". - ... I,; I,: nQ (..,1_::: "." ' '. L.l f i .~; ':;~~I'l L\'t~<~J\ , I, \':~I '.. (""I I' v. I ,. ,. I , , ., ll: ,. '1)( '. C' ", I. .~J , I l' , . I , , . , l,,' I.. , N o ~~~!i z~~~~ ffi E U : ! i d ~ i ~':o(8~Q ... II 0 ~ N ~ X .. ,- ", . ~ r' ".......,."..n~.."".'qIlH'.,jfll'"H' '-~. ",,,,.. " , """"'i 1,\Jl111'1~ I"~ 8 .. I;; ~ Wi ii 4 I 1- f, . 04 3. Denied. It is averred to the contrary that a copy of said document was not attached to the Complaint served upon The Ray Group, Inc. In any event, the terms and provisions of said document speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. 4. Denied. It is averred to the contrary that The Ray Group, Inc. entered into a contract with the Cumberland Valley school District to provide certain specific architectural services in connection with the project in question. The terms and provisions of said contract speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. Furthermore, the nature and scope of services to be provided by The Ray Group, Inc. on the project were set forth and stated in the contract between The Ray Group, Inc. and Cumberland Valley School District and a true and correct copy of said contract is attached hereto, made a part hereof, and marked as Exhibit "A". 5. Denied as stated. The terms and provisions of the contract between Cumberland Valley school District and ACAC as well as all of the other documents, records, drawings, etc. incorporated by reference therein speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. 6. Denied. Those allegations contained in this paragraph as to alleged inadequate design and/or a causal connection between any such alleged inadequate design and delays are conclusions of law to which no responsi ve pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. In any event, it is specifically denied that there was any inadequate design by The Ray 2 0( . . Group, Inc. and/or that any significant delays were incurred by ACAC and/or other prime contractors on the project due to any alleged inadequate design. It is averred to the contrary that all of the design services provided by and/or the designs of The Ray Group, Inc. were proper and appropriate and in conformance with the terms and provisions of the contractual arrangements between The Ray Group, Inc. and Cumberland Valley school District and in accordance with accepted and recognized practices and standards of the profession. Also, any and all significant delays incurred by ACAC were caused by ACAC's own conduct and/or conduct on the part of an entity lies) other than The Ray Group, Inc. which was careless and/or negligent and/or in breach of the contractual arrangement to which ACAC was a party and/or to which the other entity(ies) was a party. 7. through 10. Denied. After reasonable investigation, The Ray Group, Inc. is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in these paragraphs with regard to ACAC allegedly incurring and/or expending significant additional costs and/or monies, performing work out of sequence, redoing work, etc. and, therefore, said averments are denied and strict proof thereof is demanded. Those averments contained in these paragraphs with regard to alleged design changes and/or dimensional errors and any alleged causal connection with any construction sequencing and/or delays and/or the alleged incurrence of additional costs and/or monies by ACAC are conclusions of law to which no responsive pleading is l-equired and, therefore, said averments are denied and strict proof thereof is demanded. In any event, it is averred to the contrary that any and all alleged construction delays, 3 . . . alleged need to rework sections of the project, alleged expending of additional monies, and/or alleged inability to complete work in a timely fashion on the part of ACAC. were caused, in whole or in part, by conduct on the part of ACAC and/or on the part of an entity(ies) other than The Ray Group, Inc. which was careless and/or negligent and/or in breach of the contractual arrangement to which ACAC was a party and/or to which the other entity(ies) was a party. Also, it is averred to the contrary that ACAC failed to perform its work on the project in a proper, orderly and timely fashion and/or in conformance with the project plans and/or specifications, that ACAC failed to use proper and adequate personnel and/or supervision in connection with the performance of such work, that ACAC failed to coordinate its work with the performance of work by other contractors on the project, that ACAC refused and/or failed to correct deficient work and/or perform other work on the project which could have been performed out of sequence, and that ACAC engaged in other careless and negligent conduct and/or engaged in conduct which was in breach of its contractual arrangements with Cumberland Valley school District. 11. through 13. Denied as stated. It is admitted that copies of sRid letters are attached to the Complaint. The terms, provisions and/or substance of said letters speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in these paragraphs are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 4 . 14. and 15. Denied. It is averred to the contrary that ACAC completed some of the items referenced in the November 9, 1994 letter by dates indicated in the letter though there were other items which ACAC failed to complete by the dates set forth in said letter. Also, after reasonable investigation, The Ray Group, Inc. is without knowledge or information sufficient to form a belief as to the truth of those averments in these paragraphs as to why ACAC completed any such items and, therefore, said averments are denied and strict proof thereof is demanded. The remaining averments in these paragraphs are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 16. through 20. Denied as stated. The Ray Group, Inc. incorporates by reference herein the averments contained in its Answers to Paragraphs 6 through 15, above, as if the same were completely set forth herein at length and directed at these paragraphs. After reasonable investigation, The Ray Group, Inc. is without knowledge or information sufficient to form a belief as to the truth of those averments contained in these paragraphs with regard to any alleged interference on the part of Cumberland Valley School District with ACAC's alleged attempts to complete items referenced in the November 9, 1994 letter and, therefore, said averments are denied and strict proof thereof is demanded. It is specifically denied that The Ray Group, Inc. refused to provide ACAC with directions as to grades to be used as referenced in these paragraphs and it is averred to the contrary that The Ray Group, Inc. responded to any and all reasonable requests for information on the part of ACAC and that The Ray Group, Inc. provided 5 . . ACAC with any and all directions and/or information as required by the terms and provisions of the contract between The Ray Group, Inc. and cumberland Valley School District and/or in conformance with the plans and specifications for the project. Also, any and all work of ACAC rejected by The Ray Group, Inc. was rejected because it failed to comply with the plans and/or specifications for the project and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. Furthermore. the work of ACAC referenced in these paragraphs was not in conformance with the plans and specifications for the project. The remaining averments in these paragraphs are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 21. through 23. Denied as stated. It is admitted that a copy of the November 16, 1994 letter is attached to the Complaint. The terms, provisions and substance of said letter and the other letter referenced in these paragraphs speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in these paragraphs are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 24. through 26. Denied. It is averred, on the contrary, that ACAC commenced performance of some of the sidewalk work in question on or about November 21, 1994 and continued with other concrete work on thE; project but said concrete work was inadequate and was being performed in the same manner as previously performed by ACAC which was not in accordance with the plans and specifications fOl- the project and/or not G . . in conformance with the previously agreed upon schedule for ACAC's performance of the work. The remaining averments in these paragraphs are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 27. through 29. Denied as stated. It is admitted that copies of some but not all of said letters are attached to the complaint served on The Ray Group, Inc. In any event, the terms, provisions and/or substance of said letters speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in these paragraphs are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 30. and 31. Denied as stated. It is admitted that ACAC did not complete its work in the front entry area of the middle school but this failure on the part of ACAC to complete such work was solely the result of conduct on the part of ACAC which was not in conformance with the plans and specifications for the project and was not the result of any failure or refusal on the part of The Ray Group, Inc. and/or Cumberland Valley School District to remove those matters referenced in this paragraph. After reasonable investigat ion, The Ray Group, Inc. is without knowledge or information sufficient to form a belief as to the truth of the remaining alleged factual averments contuined in these paragraphs and, therefore, said averments are denied and strict proof thereof is demanded. The remaining averments in these paragraphs as same: may relate to The Ray Group, Inc. are conclusions of law to which 7 . no responsive pleading is required and, therefore, oaid averments are denied and strict proof thereof is demanded. 32. through 37. Denied as stated. It is admitted that copies of some but not all of said documents are attached to the Complaint served on The Ray Group, Inc. The terms, provisions and/or substance ot said documents speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. After reasonable investigation, The Ray Group, Inc. is without knowledge or information sufficient to form a belief as to the truth of the remaining alleged factual averments contained in these paragraphs and, therefore, said averments are denied and strict proof thereof is demanded. The remaining averments in these paragraphs as same may relate to The Ray Group, Inc. are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 3B. through 42. Denied as stated. It is admitted that copies of the documents referenced in these paragraphs are attached to the Complaint and that a preliminary Injunction Hearing was held on December 21, 1994 and January 4 and 5, 1995. The terms, provisions and/or substance of said documents and/or hearing speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments in these paragraphs as same may relate to The Ray Group, Inc. are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 43. and 44. Denied as stated. It is admitted that a copy of the document referenced in these paragraphs io attached to the Complaint. B . The terms, provisions and/or flubstance of said document speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. It is admitted that ACAC performed certain limited work on the proj ect ft"om November, 1994 through April of 1995 though portions of said work wet-e not being performed and/or were not performed in accordance with the plans and specifications for the project and/or pOl-tions of such work were being performed in the manner set forth and stated in the answers of The Ray Group, Inc. to paragraphs 6 through 26, above. The remaining averment.s in these paragraphs as same may re late to The Ray Group, Inc. are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 45. through 47. Denied as stated. It is admitted that copies of the documents referenced in these paragraphs are attached to the Complaint. The terms, provisions and/or substance of said documents speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. It is further averred that any and all actions taken and/or performed by The Ray Group, Inc. with regard to the release of funds to ACAC were taken and/or performed by The Ray Gt"OUP, rnc. as permitted by and in conformance with the terms and provisions of the contract between The Ray Group, Inc. and Cumberland V.olley School District and/or in conformance with the plans and specifications for the project and/or at the direction of the Cumbedand Valley school District and any and all averments to the cont rary are up.,c i (lca 11 y denied and st dct proof thereof is demanded. The l"emainin<j avennents in these paragraphs as 'J . same may relate to The Ray Group, Inc. are conclusions of law to which no responsive pleading is t-equired and, therefore, said averments are denied and strict proof thereof is demanded. 4B. through 50. Denied as stated. It is admitted that a copy of a portion of the document referenced in these paragraphs is attached to the Complaint. The terms, provisions and/or substance of said document speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. It is specifically denied that The Ray Group, Inc. at any time refused to allow the Cumberland Valley School District to pay monies to ACAC or that The Ray Group, Inc. either had the authority or power to refuse to allow and/or in any way prevent the Cumberland Valley School District from paying monies to ACAC. It is averred to the contrary that any and all actions taken and/or performed by The Ray Group, Inc. with regard to the release of funds to ACAC as related to Applications for Payment were taken and/or performed by The Ray Group, Inc. as permitted by and/or in conformance with the terms and provisions of the contract betwE.en The Ray Group, Inc. and Cumberland Valley School District and/or in conformance with the plans and specificati0ns for the project and/or at the direction of Cumberland Valley School District and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. In addition, ACAC failed to comply with the terms and provisions of its contract with Cumberland Valley school District and/or the plans and specifications for the project (including but not limited to the General conditions and Supplementary General Conditions of the contract) with t"egard to ACAC's submissions of Applications for Payment as related to ACAC's performance of work on 10 the project. Furthermore, The Ray Group, Inc. incorporates by referenc~ herein the averments contained in ita Answers to Paragraphs 6 through 26, above, as if the same were completely set forth herein at length and directed at these paragraphs and which served as a basis, in part, for actions related to ACAC's Applications for Payment. The remaining averments of these paragraphs as same may relate to The Ray Group, Inc. are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 51. through 53. Denied. It is averred to the contrary that The Ray Group, Inc. has certified portions of other Applications for Payment submitted by or on behalf of ACAC and has made repeated requests of ACAC to submit for review and consideration those pertinent documents and records needed for review and approval of Applications for Payment but ACAC refused and continued to refuse to submit such materials as required by the contract documents including the plans and specifications for the project. Furthermore, it is specifically denied that The Ray Group, Inc. at any time refused to allow the Cumberland Valley School District to pay monies to ACAC or that The Ray Group, Inc. either had the authority or power to refuse to allow or in any way prevent the Cumberland Valley School District from paying monies to ACAC. It is averred to the contrary that any and all actions taken and/or performed by The Ray Group, Inc. with regard to the release of funds to ACAC in connection with Applications for payment were taken and/or performed by 'rhe Ray Group, Inc. as permitted by and/or in conformance with the terms and provisions of the contract between The Ray Group, Inc. and Cumberland Valley School District and/or in 11 conformance with the plans and specificiltiollS for the project and/or at the direction of Cumberland Valley School District and ilny and all averments to the contrary are specifically denied and strict proof thereof is demanded. Also, The Hay Group, Inc. incorporates by reference herein those averments contained in its Answet- to Paragraphs 4B through 50, above, and The Ray Group, Inc. re-alleges said averments to these paragraphs as if the same were completely set forth herein at length. 54. Denied. The Court's Order issued with regard to the preliminary injunctive relief sought by ACAC has since been vacated and, ir. any event, the averments contained in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 55. and 56. Denied. It is admitted that certain correspondence with regard to such matters is attached to the Complaint. The terms, provisions and/or substance of said documents speak for themselves and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. It is denied that The Ray Group, Inc. failed to notify ACAC with regard to certifications of payment. On the contrary, The Ray Group, Inc. incorporates by reference herein those averments contained in its Answers to Paragraphs 4B through 53, above, and The Ray Group, Inc. re -alleges said averments to this paragraph as if the same were completely set forth herein at length. The remaining averments of these paragraphs are conclusions of law to which no t-esponsive pleading is requit-ed and, thet-efore, said averments are denied and strict proof thereof is demanded. 12 57. through 64. Denied. The Ray Group. Inc. incorporates by reference herein those averments contained in its Answers to Paragraphs 4B through 53 and 55 and 56, above, and The Ray Group, Inc. re-alleges said averments to these paragraphs as if the same were ~ompletely Sl~ forth herein at length. Furthermore, The Ray Group, Inc. avers to the contrary that The Ray Group, Inc. had numerous contacts with representatives of ACAC and Cumberland Valley School District in attempts to resolve disputes with regard to any and all payments allegedly due and owing to ACAC and with regard to ACAC's work to be completed and/or corrected pursuant to and in conformance with the plans and specifications for the project. After reasonable investigation, The Ray Group, Inc. is without knowledge or information as to the remaining alleged factual averments contained in these paragraphs and, therefore, said averments are denied and strict proof thereof is demanded. The remaining averments of these paragraphs are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. Furthermore, any and all actions on the part of The Ray Group, Inc. with regard to those matters set forth in these paragraphs are clearly matters of privilege to which The Ray Group, Inc. is entitled pursuant to the contractual arrangements and plans and specifications for the project and under the law. COUNT I 65. The Ray Group, Inc. incorporates by reference herein the averments contained in its Answers to Paragraphs 1 through 64, above, and The Ray Group, Inc. re-alleges said averments and Answers to this paragraph as if the same were completely set forth herein at length. 13 66. Admitted. 67. Denied. It is averred to the concrary that payments to be made to ACAC were to be made pursuant to the contract docllments and/or at the direction of Cumberland Valley School District and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The remaining averments of this paragraph are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 6B. and 69. Denied as stated. It is admitted that there were certain alleged claims and/or assertions but said claims and/or assertions and/or the remaining matters set forth in these paragraphs are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 70. Denied as stated. The testimony of Michael Patton speaks for itself and any and all averments to the contrary are specifically denied and strict proof thereof is demanded. The Ray Group, Inc. incorporates by reference herein those matters set forth and stated in its Answers to Paragraphs 1 through 64, above, and The Ray Group, Inc. re-alleges said averments and Answers to this paragraph as if the same were completely set forth herein at length. In particular, it is specifically denied that The Ray Grollp, Inc. has failed or refused to consider certification of any further payment requisitions submitted by ACAC and it is further denied that ACAC continually worked on the project from December, 1994 through April 4, 1995. Though some additional work had been complet,~d on the pl"oject dul"ing that time 14 frame by ACAC, a substantial portion of the work performed or to be performed by ACAC on the project needs to be corrected as not being in conformance with the plans and specifications for the project and/or has yet to be completed aE' required by the plans and specifications for the project. In any event, the averments contained in this paragraph are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. 71. through 73. Denied. After reasonable investigation, The Ray Group, Inc. is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in these paragraphS including, but not limited to, those averments as to the nature and extent of alleged damages being claimed by ACAC and, therefore, said averments are denied and strict proof thereof is demanded. The remaining averments of these paragraphs are conclusions of law to which no responsive pleading is required and, t.herefore. said averments are denied and strict proof thereof is demanded. COUNT II 74. The Ray Group, Inc. incorpol-ates by reference herein the averments contained in its Answers to paragraphs 1 through 64, above, and The Ray Group, Inc. re-alleges said averments and Answers to this paragraph as if the same were completely set forth herein at length. 75. through 78. Denied. After reasonable investigation, The Ray Group, Inc. is without knowledge or information sufficient to form a belief as to the truth of the alleged factual averments contained in this paragraph including, but not limited to, those averments as to the nature and extent of alleged damages being claimed by ACAC and, 15 therefore, said averments are denied and strict proof thereof is demanded. The remaining averments of these paragraphs are conclusions of law to which no responsive pleading is required and, therefore, said averments are denied and strict proof thereof is demanded. NEW MATTER 79. The plaintiff's Complaint fails to state a cause of action against The Ray Group, Inc. upon which relief may be granted. BO. Any and all claims and/or alleged causes of action of the plaintiff against The Ray Group, Inc., said claims and/or alleged causes of action being specifically denied, are barred by the applicable statutes of limitation of the Commonwealth of Pennsylvania and/or applicable statutes of limitation set forth in the contract and/or project documents and/or those matters incorporated by reference therein and, therefore, The Ray Group, Inc. is not liable to the plaintiff. Bl. Any liability of The Ray Group, Inc. with regard to the claims and/or alleged causes of action involved in this matter, said liability being specifically denied in the first instance, is governed and/or limited by the provisions of the Pennsylvania Comparative Negligence Statute. B2. The plaintiff's claims, if proven at trial and which are denied, were caused by a person, persons and/or entities other than The Ray Group, Inc. and over whom The Ray Group, Inc. had no cont.rol and, therefore, The Ray Group, Inc. is not liable to the plaintiff. B3. The alleged claims of the plaintiff, the extent of same and any liability on the part of The Ray Group, Inc. with regard to same being specifically denied in the first instance, were caused, in whole 16 or in part, by the contributory negligence and/or assumption of the risk and/or breach les) of contract ;llld/or breach les) of obligations and/or other acts or omissions on the part of the plaintiff and which would preclude the plaintiff from any recovery against The Ray Group, Inc. and/or would reduce the amount of any such alleged recovery against The Ray Group, Inc., said recovery and any liability on the part of The Ray Group, Inc. being specifically denied in the first instance, and, therefore, The Ray Group, Inc. is not liable to the plaintif f . 84. The alleged claims of the plaintiff, the extent of same and any liability on the part of The Ray Group, Inc. with regard to same being specifically denied in the first instance, were caused, in whole or in part, by the negligence and/or breachles) of contract and/or breach(es) of obligations and/or other acts or omissions on the part of one or more unknown third parties over whom The Ray Group, Inc. had no control and for whom The Ray Group, Inc. was not and is not responsible and which would preclude the plaintiff from any recovery against The Ray Group, Inc. and/or would reduce the amount of any such alleged recovery against The Ray Group, Inc., said recovery and any liability on the part of The Ray Group, Inc. being specifically denied in the first instance, and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 85. The alleged claims of the plaint if f, the extent of same and any liability on the part of The Ray Group, Inc. with regard to same being specifically denied in the first instance, were caused, in whole or in part, by the negligence and/or breachles) of contract and/or breachles) of obligations and/or otheL' acts aL' omissions on the part of 1'1 the plaintiff and/or on the pal't of one or more unknown third parties over whom The Ray Group, Inc. had no contl'ol and for wholll The Ray Group, Inc. was and is not responsible and which was a superueding and/or intervening cause of the alleged clilims of the plaintiff, said claims and any liability on the part of The Ray Group, Inc. with regard to same being specifically denied in the first instance, and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 86. Any and all claims of the plaintiff as against The Ray Group, Inc., said claims and any liability on the part of The Ray Group, Inc. in the first instance being specifically denied, are barred by the doctrines of estoppel, waiver and/or laches. 87. The plaintiff failed to mitigate any and all alleged claims involved in this matter, the validity of all such claims and any alleged liability on the part of The Ray Group, Inc. with regard to same being specifically denied in the first instance and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 88. All services performed and/or to be performed by The Ray Group, Inc. with regard to the project in question were performed and to be performed under and subject to the terllls and provisions of an agreement between The Ray Gt"OUP, Inc. and Cumberland Valley School District land all contract documents incorporated by reference) and any alleged liability or responsibility on the part of The Ray Group, Inc., said liability and/or responsibility being specifically denied in the first instance, is governed and/or limited by the terms and provisions of said a9reement and a tru,; and COL'rl~ct copy of same is attached hereto, made i\ part hereof, and maL-ked as Exhibit "A" and, therefore, The Ray Group, Inc. is not liable to thl~ plaintiff. lA 89. The Ray Group, Inc. had no contractual arrangements, whatsoever, with the plaintiff with regard and/or as related to the work perfoI'med or to be performed by the plaintiff on the project in question and The Ray Group, Inc. owed no duty to the plaintiff and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 90. All services rendered and/or performed by The Ray Group, Inc. with regard to the project in question were performed in a careful and workmanlike manner and in accordance with the contractual arrangements between The Ray Group, Inc. and Cumberland Valley School District and/or in accordance with recognized professional standards, practices and procedures and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 91. The Ray Group, Inc. did not have control over nor charge of nor was it responsible for construction means, methods, techniques, sequences or procedures in connection with the plaintiff's work on the project, all of which were the responsibility of the plaintiff or of a person or entity other than The Ray Group, Inc. and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 92. The work performed and/or to be performed by or on behalf of the plaintiff on the construction project in question was not performed in a careful and workmanlike manner nor was such work performed in accordance with the terms and provisions of the contract documents nor in accordance with recognized and accepted standards, practices and/or procedures in the construction industry and, therefore, The Ray Group, Inc. is not liable to the plaintiff with regard to the alleged claims and causes of action involved in this matter. 19 93. The plaintiff has failed to comply with the terms, provisions and/or conditions of the project contract documents including its contract with Cumberland Valley school District with regard to the claims involved in this matter and the plaintiff has failed to comply with those conditions precedent to the filing of the instant action and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 94. The claims of the plaintiff were caused, in whole or in part, by conditions at the project site and/or conditions over which The Ray Group, Inc. had no control and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 95. Any and all significant delays allegedly incurred by the plaintiff were caused by the plaintiff's own conduct and/or the conduct of a personlsl or entity(ies) other than The Ray Group, Inc. which was careless and/or negligent and/or in breach of the contractual arrangements to which the plaintiff was a party and/or to which the other entity(iesl was a party and, therefore, The Ray Group, Inc. is not liable to the plaintiff for any such alleged delay. 96. Any and all alleged construction delays, alleged need to rework sections of the project, alleged expending of additional monies and/or alleged inability to complete work in a timely fashion were caused, in whole or in part, by the conduct of the plaintiff and/or the conduct of a personls) or entityliesl other than The Ray Group, Inc. which was careless and/or negligent and/or in breach of the contractual arrangements to WhlCh tha plaintiff was a party and/or to which the other personlsl or entity(ies) was a party and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 20 ',lilll.l 97. The plaintiff failed to perform its work on the project in a proper, orderly, and timely fashion and/or in conformance with the project plans and specifications in that the plaintiff failed to use proper and adequate personnel and/or supervision in connection with the performance of such work, that the plaintiff failed to coordinate its work with the performance of work by other contractors on the project, that the plaintiff refused and/or failed to correct deficient work and/or perform other work on the project which could have been performed out of sequence, and that the plaintiff engaged in other careless and negligent conduct and/or engaged in conduct which was in breach of its contractual arrangements with Cumberland Valley School District and, therefore, The Ray Group, Inc. is not liable to the plaintiff . 98. Any and all actions taken and/or performed by The Ray Group, Inc. with regard to the review and/or consideration of Applications for Payment and/or with regard to the release of funds by cumberland Valley School District to ACAC were taken and/or performed by The Ray Group, Inc. as permitted by and in conformance with the terms and provisions of the contract between The Ray Group, Inc. and Cumberland Valley School District and/or in conformance with the contract documents, plans, and specifications for the project and/or at the direction of the Cumberland Valley School District and were performed in accordance with the recognized and accepted practices, procedures and/or standards of the profession and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 99. The plaintiff failed to comply with the terms and provisions of the contract documents with regard to the project in question 21 including, but not limited to, the General Conditions and Supplementary General Conditions as well as other documents and records incorporated by reference in the contract documents with regard to its work on the project and/or its submissions of Applications for payment despite repeated requests for such conformance and the plaintiff failed and refused to submit appropriate materials as required by the contract documents with regard to such work and/or Applications for Payment and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 100. The claims and demands being made by the plaintiff in the instant action include a demand for consequential damages as related to alleged delays and/or extra expenses incurred by the plaintiff and are barred by the terms and provisions of the contract documents both as against the owner of the project and The Ray Group, Inc. inClUding, but not limited to, Article 8.0 of the Supplementary Conditions and, therefore, The Ray Group, Inc. is not liable to the plaintiff and The Ray Group, Inc. is, in fact, entitled to reasonable attorney's and expert witness fees and all other costs and expenses incurred by The Ray Group, Inc. in the defense of this litigation. 101. All of the actions taken by The Ray Group, Inc. with regard to those matters set forth in the Complaint and/or with regard to the work performed by or on behalf of the plaintiff and/or other persons and/or entities on the project are subject to the appropriate privilege(s) of an architect on a construction project pursuant to the contract documents and as recognized and accepted in the profession and/or industry and/or under the laws of the Commonwealth of Pennsyl vania and, therefore, The Ray Group, Inc. is not liable to the plaintiff . :!2 102. Pursuant to the tenns and provisions of the contract documents between The Ray Group, Inc. and the Cumberland Valley School District and in accordance with recognized and accepted standards, practices and procedures in the profession and/or industry and/or under the laws of the commonwealth of Pennsylvania, The Ray Group, Inc. acted at all times material hereto and with regard to those matters set forth in the Complaint as an agent and/or representative of the owner of the project and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 103. At all times material hereto and with regard to those matters set forth in the plaintiff'S Complaint, The Ray Group, Inc. acted totally within the scope of its contractual obligations to the Cumberland Valley School District and at no time did The Ray Group, Inc. act in bad faith or maliciously and, therefore, The Ray Group, Inc. is not liable to the plaintiff. 104. At all times material hereto and with regard to those matters set forth in the plaintiff's Complaint, the activities and/or actions of The Ray Group, Inc. were in discharge of its fiduciary obligations to the cumberland Valley School DistL"ict and/or to protect the interest of the cumberland valley School District and were done without malice and, therefore, were and are privileged and The Ray Group, Inc. is not liable to the plaintiff. 105. At all times material hereto and with regard to those matters set forth in the plaintiff's Complaint, the activities and/or actions of The Ray Group, Inc. were in its capacity as an arbitrator and such matters were performed without malice or bad faith on the part of The 23 'i 1" 11. 1 Ray Group, Inc. and, therefore, The Ray Group, Inc. is immune from any liability in this matter and is not liable to the plaintiff. 106. At all times material hereto and with regard to those matters set forth in the plaintiff's Complaint, the activities and/or actions on the part of The Ray Group, Inc. were related to and/or involved with the legal action which was commenced by ACAC against the CVSD and, therefore, all such activities and/or actions are protected by an absolute or qualified privilege and, therefore, The Ray Group, Inc. is not liable to the plaintiff. WHEREFORE, The Ray Group, Inc. demands judgment in its favor and against the plaintiff on the plaintiff's Complaint and The Ray Group, Inc. further demands judgment in its favor and against the plaintiff for all reasonable counsel fees and costs involved in the defense of this matter as well as such other relief as this Honorable Court deems just and proper under the circumstances. NEW MATTER PURSUANT TO PA.R.C.P. 2256 AS AGAINST THE PLAINTIFF The Ray Group, Inc. brings the following New Matter Pursuant to Pa.R.C.P. 2256 aR against the plaintiff and The Ray Group, Inc. avers upon information and belief in support of same as follows: 107. The claims and demands being made by the plaintiff in the instant action include a demand for consequential damages as related to alleged delays and/or extra expenses incurred by the plaintiff and are barred both as against the owner of the project and The Ray Group, Inc. by the terms and provisions of the contract documents including, but not limited to, Article 8.0 of the Supplementary Conditions and, therefore, The Ray Group, Inc. is entitled to reasonable attorney's and 24 '11[d1.1 expert witness fees and all other costs and expenses incurred by The Ray Group, Inc. in the defense of this litigation. lOB. Based upon the allegations and/or contentions of the plaintiff in the Complaint, the plaintiff is contesting, disputing and/or litigating the provisions of the contract documents and, therefore, has breached and cont inues to breach the terms and conditions of the project contract documents. 109. The Ray Group, Inc. has incurred and will incur in the future substantial counsel fees and costs involved in the defense of this action and which may require the engagement of expert witnesses and the expenditure of other defense costs and expenses by or on behalf of The Ray Group, Inc. 110. Pursuant to the contract documents including, but not limited to, Article B of the Supplementary Conditions, the plaintiff is required to reimburse The Ray Group, Inc., as the architect on the project, with regard to all such reasonable attorney's fees, expert witness fees, and all other costs and expenses incurred in the defense of this litigation. 111. The plaintiff's Complaint though filed in April, 1995 was not served on The Ray Group, Inc. until May, 1996 and the plaintiff's commencement of the instant action was initiated and continued by the plaintiff without probable cause and/or in a grossly negligent manner either or both of which were and are arbitrary, vexatious and/or in bad faith on the part of the plaintiff and, therefore, contrary to the provisions of 42 Pa.C.S.A. ~2503(9) and/or 42 Pa.C.S.A. ~B351-B354. 112. A formal request has been made upon counsel for the plaint if f to have the plaintiff voluntarily agl'ee to the withdrawal and/or 25 ',11,\1,1 ,- ~ ( TERMS AND CONDITIONS OF AljHEEMENT BETWEEN OWNElt AND AHClllTECl' ARTICLE 1 ARCHITECT'S RESPONSIBILITIES 1.1 ARCHITECT'S SERVICES t .1.1 The Art:hilcc."l's )clvil'e~ l'onsbt tlf IhtlSc ~l'I'\'i(c~ per. fllrllll:l1lJ)' IllC~ Architect. Ardlilcl"(','i l'l11phl)'CC~ Jnd ArrhllC'(I's comullal1ls ...\ cnurncr;llcd in Article.' .! Jnl! .~ (If Ihh ^KrCCI11CIlI ~I1U tiny other !'icr\'It.:c!i included in ArIIrlc I.!. 1.1.2 The ArdllICCt's scn'h:c.'s shall he Ill'Ifllnncd ..., cxpnli. llowl)' 4\ is consistent Wilh pro(CMiIOllal skill and cafe Jnd Ihe mderly rm)grcss (IC the Work. Url(111 rcclucst ll( IIIC ()wncr, Ihe MchlICC.'1 shall submit (or the Owner's Jppro\'al a ~dlcdulc (or the pcrlorm;mcc or the ArchUccl's ",("(vjres \\'l1lcl1 may he adjustcd a.~ the Project proCeed'), :UllJ shalllndudc :dlowanrcs for perluds of lime required (or the Owner's review anLl for appru\':lJ ()f suhmlssluns h}' aUltH>r1liL'~ 11avil1M jurl'Suinlon ()\'Cr the Prolc:t:t, Time limit' est.hll,hed bl' Ihl, schedule 'pplll\'cd hy Ihe Owner sh;ill nell, C:<Cl'PI fllr rt~.L\C)nahlc l"JlL'iC, he exl"t.-a.k'C.l by Ihe Archllecl ur Owner. 1.1.3 The servln~~ co\'ered hr this ^"rl'cntl'nl arc ~uhjcclln Ihe lime IIml..,llln, C<lnl.ined In SubpmKr2ph II.S.1. ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES 2.1 DEFINITION 2.1.1 The Arehileet', 1I..le Service, ellnslSlllf Ihnse desclibed In Pmg"'ph, 2.2 Ihrough 2,6 ,nd .nl' 01 her servlees Idenllned In ^nicle 12 il.1 P;&rc of "aslc Services, and indude normal MnH.." .ur:lI. mcch2l11e:ll 2l1d deellieal englneelinK ,ervlces. 2.2 SCHEMATIC DESIGN PHASE 2.2.1 The Arehlleel ,h;l!1 review 'he program fUlI1lshed bl' Ihe Owner In aseenaln ,he requlremenls uf Ihe Prolec. and shall arrive ;11 :iI mutual underst:mdlng of such requlremcnts with Ihe Owner, 2.2.2 The Arehilcc. ,h;l!1 provide, preliminary evaluallnn llf the Owner's progr.Ull, schedule and cunstnJclinn hudKet requlremen15, rach In lerms of the ulher, suhjet:1 tn Ihe liJll113' lions se' forth In Suhp""KrJph S.21. 2.2.3 The ArchllCCl ,h;l!1 reView wilh Ihe Owner allell1allVe approaches 10 design ;JJld construction ()f the Pn1lecl, 2.2.4 U..ed on Ihe mUlu:llly ,greed.upon prllgr.lm, schedule and cunSlNcllon budget re'lulremems, Ihe Archilecl shall prep:ue, for apprt)\':d h}' Ihe Owner, Schemallc DeslWl Docu. ments cumbling of dr.&winK~ and other ulJ(\lI1\eIllS ItllL'HrJflnR Ihe: Kille: and rcl3110nshlp of Jlrojectl'ulTlpol1enfs, 2.2.5 The Archll.cI shall suhlllll '0 Ihe OWl1er a prelimll1a!)' ('!\tunau: of CUl1slrucllun Cost ha~cd on l'UHl'nt ar~", vlllume or other unit costs_ 2.3 DESIGN DEVELOPMENT PHASE 2.3.1 U;lSeu on the appro\'ed S\.:hemalll: lkslMIl (xu.'umen!." and any alljUMlnem!i :ilulhurlzelJ hy the Owner in Ihe progrJJl1, ~rhellult.' or nlll'lnKlItll1 huuW:I. Ihe Arl'hltl'U ~IIJII prl'parc, fllr approval hr the O\\'Ilt'r, ()eslRII 1>C\'l'lnpl1ll'llI J>ocumelll~ t.'tll1~t...IlI1H 01 drJ\\.II1R." al1lllllher lIU[llllll'llts to lix ami th:\l'nhl' Ihe sin' and dlilracu'r of the Prolcl't a... In architcctural, Mnll" lllral, Il\l'challifal Jnd e1l'ctrit';li S}'SIl'I11S, I11Jle:rlah ;.lnd SUdl tllher e1eOlel1lS ;1... l11ay he approprl;&tc, 2.3.2 The Archlleel shall advise Ihe Owner of an)' adjuSlmel11S to the preliminJry l',Un1Jle of Construction CosI. 2.4 CONSTRUCTION DOCUMENTS PHASE 2.4.1 Ba'ed on Ihe 'pproved De,ll\Il Developmel11 Il<KU' menls ;1nll any fuul1er ;1dlustmc:nt~ In the scope or 4u:lllty 01" Ihe Project or in the l'onsINl'tllJr) hudget a\llhorizcd hy Ihe: Owner, Ihe Archllee. ,h.1I prepare, for appruval bl' ,he Owner. (unstrUl-tlon llt)cuJl1ents consbtlng of Drawings and Spedne,:a, lluns M'lllnH funh In dCI:lilthe requirements for the construe, lion 01" Ihe Project. 2.4.2 The Arehllecl ,hall a....L.. ,he Own.rln Ihe prepa""ion of Ihe neee'"rl' hlddlnK Informallon. bidding fl1rm'. Ihe Condi, liuns of Ihe: Contract. andlhe form of Agreemenl hetween the Owner and Ctllllr;&CIOC, 2.4.3 The ArchileCl shall advise .he Owner of 2l1Y adjuMmen" 10 previous prdll11inar)' CMlmatc:s or Construction Cost hllh. Clued b)' Ch.II1MD 111 requln.:mcllls (lr gcner.1ll11arkct conditions, 2.4.4 The Archll.c. sh;l!1 ...,1.. Ihe Owner In cunnec,lun wllh Ihe Owner's r<'5lXlIl,lhillly for nllng document' reqUired for Ihe approval of guvemmenl:ll aUlhUrllles having lurlsdlclion over Ihe (JrulcL:t. 2.5 BIDDING OR NEG(>nATION PHASE 2.5.1 The Archllec., following Ihe Owner', approv:ll uf Ihe Con"ruellon Ducuments 2l1d of ,he lare", preliminary eSllmare of Conslruclion Co!"!t, shall 35sl!il the Owner in oht;&.lning bit.l5 or neKulIOled ProlXlSaIs 2l1d as,ls. In awarl1lnK and prepallng eOnfrJCIs for conslructlun, 2.5 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.8.1 The Arehlleet', re'pon'ihllll)' 10 pruvlde Uaslc Services fmlhe Con5lruc.lon I'hase underlhls Agreemenl commences wilh the award uf Ihe Conl",el for CunSlNeli"n 2l1d lennlnare. 01 Ihe earlier uf ,he lssu2l1ce 10 Ihe Owner of Ihe nn:ll Cenlfica.e for Pal'mel1. m m dlys aflerlhe dlte uf SubSl2l11i;l! Complelion of 'he Work. unless e..ended underlhe lenns of Subp.",gr.lph 10.3.3. 2.8.2 The Archllecl shall proVide admlnlSlr.lllon nf ,he Cun. lC;1l'l for Constructlun a.'i !ict fOrlh below and In the edition of AlA Dc.H:umc:m A20 I. Genc:r.aJ Conditions of the: Cunt~ct for COIl."lnlL:Ilon. curreO( :l'i of Ihe date of thl~ Agreement. unless otherwl'lC: proVided In this AMrec:rnc:nt. 2.8.3 !JUlie,. re'lXlOslbilllles and Iilnllalions of aUlhorlly uf Ihe Archltcct shall nut be rcslrlctcd. modJfied Or extended without wrillen ;1"rttmcnl of Ihe Owner :mcJ Architect With con5CnI of (he COltlrJClOr, ".hlch l'"OmCIlI shall nm he unrClSon2.bly wllhheld. AlA OOCUMENT 1141' O\\'Nf.RANUlITU:T AtiNf.EMF.NT . HHlflTF.fNTIl ft)ITH1N. AlA- . li)IIJH' TilE AMfNICAN INSTlTlln Of AflUllnTT'i, I ,,~ Nf'" YONK AVt:NlI.:, N \\'. \l'A"IIN(iltlN, 11 C ~Olllltl B141-11117 2 ( 2.8.4 The Archllect .h:lll he. rCple"nl.lil'e Ill.ml ,h:lll.dl'l,,' .nd comull wllh rhe Owner (I) lIurlnK cull,tnJclllln umll nn~1 p,yment 10 rhe CuoI",ctor I.' due. .nd m...n Adllillur,,1 Ser. \'lce;1I the Owner's dlrccllol\ from time to lime durinK the for. reClilm pcriluJ lIc~l'rjhcd In the l:tHllr,ll'llllf (:lu"lnlrlltul. Till' ArchUcc, ~htlll have ~ulhorily 10 act 011 hchJlf ul the Owner ()Illy to Ihe eXICI\I pnwlLlcd In lhts M~rcernl'nl '1Idc~, 11lhcrwI!'IC.' mudlOCll hy wrllten in5lnlluenl 2.8.5 The Archllcc( .!lhall \'blt the ~lIl' ;11 1I11er-\'J" appll1lHiJll' 10 the 5UKc o( construction or ;u ()llu:rw~c OlKfl"td hy the Owner :lI\d Archllect In wrtllnK 10 hccollle Kenmliy 1.01111>1 with the progress and quality of the Work complclrl1 :u1\IIO determine In Heller.lIlr the Work is hclnK (lcrrorl1\l'llln ;I mall' ner indlc;ulnK that che W<<Hk when completed Will he: in ;U..'l'tll' dance with the Controlct {)ocumc=nl\, lIowever, Ihe Archltcct shall nlll he rc=qulred to m;tke cxh;uullvc m conlinuous OIHillc Insp<ctlon' 10 check Iho qu:llllY or 'Iu.nuI)' Ilf Ihe Work. on the b3.'i15 of olHllC~ obscrv;l1lons 3.\ ;an ;archUccl. Ihe Ardlltccl .h:lll kc<p rhe Ownor Infunned III Ihe p"'Kro,.. :lJ,d 'Iu.llly 0' Ihe Work, and sh;ill cndr:2vor to MU2rd Ihe Owner :&K<Unlll ddecLS and deficiencies in the Work, (Mon' l'.\'MlJin.' lill' rtprcscw"tiotJ ""'>' be tlMrf.'('(J 10 ,15 WI AclJiliutlld Sl'1l'in', cU tJ,'s,rilJt'(/ '" I'cJrcl8raJ111 :f..?,) :Z.8.e The Archllecl shatl nm h;&\'e l"t}Olrol ovcr m dl;UMe of ;tnd shall not be respunsible for construclion mc-.uu, methuds, technlquL'S, sequences or procedures, or for !i;&fety pn:f.-;lullon\ :lnd progr.lmS In conneclion \\'lIh the \\'lIlk, sll1ce these iHe solely the Conl~clor'5 re5ponsihUlt~' unller the ContrJct for Construclion, The Archltecl !'ohall rUlI hl' rC!'opllnsihk' for IlIl' COntr.lClor's schedules or f;allure 10 Gllf)' out Ihe "'urk In :ll"l'IIl' dmce wllh rhe Com",ct !Jocumel\l.. The Archllecl .h.U nlll h:lve conuol ovc:r or ch:use of ;Jets or oml55lnns of the Controu:- lOr, SUbCOllll'2CIOrS, or their OIKenls or employees, Or or 3n~' olher l"'''''n.\ perfornllnK portio"" 01 the WllIk. 2.8.7 The Archllort .h:lll .1 :illUmes h.ve .cco" 10 tho Work wherever It is in prcp;ar.lIlon ur plllKres~, 2.8.. Excopt .. may olhel\\'l>o be prol'ldod in Ihe COllle"l Documents or whcn dlrccl communications hnc hCL'n sJ>L'. dally authorized, Ihe Owner OInu OmlfJCltll sh:lll comlllunlGlle IhruuKh ,he Archllect. COlllmulllC:lUon, by .nd with lhe Archl. u:cl's c()nsuh:mts shall he thruu~h Ihc ArL"hltecl. 2.8.1 n;l.~ed on the Archllect's Ub~f\'0IIiun5 ami e\';l!u:llloIlS (Ir lhe COI\I",elOr', Appllcallon. lor 1"I'melll, lhc Archll<:Ct ,h.1I review ilnd certify the ;amOUntS due the COlUr;lctur, 2.8.10 The ArchlloCI" certtnC:lUon lor p'YlnCIll ,h.1I Cl""U lute a representation to Ihe Owner. hJ.~ed on Ihe Archilcct\ observ3110n. .tlhe .Ile "" provided In Suhp'rJKr.lph 2.6.~ .1ll1 un the d;at;a cnmprlslfl~ the ComrJcwr's ^pplh:OI.tlOn fllr 1'01)'. mem, Ih:1t the Work h3.'i proKrcMeLl to the polnllnLlil'illcd ami th:n. to the best of the Archltecc's kntlwlL't.1gc. Inftlun:uitll\ ;11\(1 Iwlld. quallt)' or Ihe Work is In JccocdJIlL"e wilh lhe ContrJL:I Document!;, The foreKolnM n:pre!'\cnt:.lll()n~ arc 'Iuhjcl'1 to an c\'alu:ltlUI1 of till: Work fill conhml\Jnl'e \\ Ith Ihe CtHlIrJl'1 Documents UPtll' Suhslanlial CIll1lplc:tlill1, II) rCMIII~ llf Md)!le, lluent tests and Inspet1ion,~, tn mlllOr dC\'iJtiun!'o hum thc Clln. tr;lct Documents l"mrenahlc ruor 10 L'lllllpletlon Jnd to !'opc, nllc quahlkallons eXprl'SllL'L1 hr the ArdlllL'l't. TIll' I"""uallu' III .1 CenlfiC:llc for Payment sl1311 further Clll\~UlIlle ;1 rl'prl'!'ol'I1I:11101l tll;!l Ihe COl1lr.lL:tor h enlllled to IlJyrncllI1I1 till' aJ1lount l'erll nell, Iltlwc\'cr, the h!'oUJI1t:l' tlf a CntlllrJll' hlr I'Jyml'l\I ..lull not he :I rcprL'M.'l1tallon IllJIth~ Aldmcn Ii;t, II) l11Jlk' l.xhau!'o liVe or nll1tll\\loU\ tln'SlIL' il\'ipcL'lIlJl\\ 111 dwrk 11lL' quahtl' il( (, '" , . . tlUilnlil~' (If tllc \\'c)rk, (I.) rC\'lL'wl'd l'()f\!)toll'tll)l1 me-w, l11etl,. t)ll\, tcclu'I'Iucs, !'ol'qucnct'~ (lr pnx."edurcs, (3) rc:vlt'wtd cupie) or req\lbllton~ rCl"ch'cll from SuhL'(ll1Irat:tors 0I1ll1 OlatcrttJ Mill' pliers ilnd I Hill" dJtJ rL'lIUl','\tL'd h~' Ihe ()Yo'l\er to !\ull.\lantlille Ihe Ctultra(wr\ ri~ll1lt) IlJ~'lIll'nllll H) a...tCI1i1l1led how m ror whaIIHlrpU'I(' Ihe ColltraL'11)1 ha., u.'Il'd n\lJl1c~' preYhILL\I)' pJid on .Kl'llul1l ollht' CtJl1lr;ll't ~um 2.8.11 Till' ArrhHl"l't ~ltllI hJ\'C ;Iuthllll1y 10 JcICL'I Wllrk whkh dOt"!'o nllt l'tJllhuIU 10 IhL' Clllllrill'1 Dnt'lllnCI1I!'\, WhellCYt"r lhe Ml.:hitCl't l.'tJl\~iders iI I1l'L'C.5S;H)' or adVl!\;thle for implancl1t;l. tion 01 the Inlellt or' the COI1H;ll'll>oculllcnts, Ihe Mchltt'Ct will have OIuthl)ril~' II) rellulle :ludltlonal inspc<:tion Ilr IC~i1lnKof the Work In t1l'l'onIJnce wllh tht, pn)\'I.~hJl\!\ of the Cllntrolf.1I>ocU. lIlenl~. \\'hCIIIl'r or lIot !ludl Work l!'l fahrlr:ltell, in~ullcl1 or cllf1lph:tclI, Iltl\\'c\'er, neilher thl.~ OIuthorlt~' orthl' ArdlUa:1 nor J ded..lol1 nuLle in MIK)d failh eilher to cxcrcbe or nm 10 exer. rbe liuch aUlhnril)' !lhall KI\'e ri'll' to ;I UUI)' or re!ip()115Ihilll~' of the Ardlitecl to the Ctll1tr.lL:lOr, SuhL"OmrJl'IOfS, l11aterW anll equipment suppliers, their agents or C'mplo~'el's or other per. sOilS perfonninM portions of the Work, 2.1.12 The Archllect ~hall rC\'leW ;lnd appro\'c or 1olkc= other OIppropri;ltc ;lrtion upon Conlractor's suhrnlllal\ !ilu:h a.', Shop ()rowlnl!-'. ('rmlllct !J.l. :lI1<l S.mpl.., hUI nnly lor Ihe IImlled purpose (If rhecklnK fur confonnanL:c \\'ltl1 InfurI11atlon MI\'en omd Ihe dcsiKn concepl exprcsM:u In tht: COl1lr.lCI Documents, The Architcct's action sh.1I1 he taken with such re:uonahlc promptness ilS to l';1U\l' nl) tJcliI)' in Ihc \X'mk or in the con. structlon or the Owner m of SCp:ll'3le COmfaClOrli, while allow. in~ !iurnciel1l Iimc In Ihe ArL'hlterl\ professlonallullwnclll 10 permit adetlUJle rC\'leW, HC\'ic\\' of !'o\Kh !'ouhnunab l!'o nut fOn. duelcd for the purpose uf lIctcrminlnK lhe ;lccurJC}' OIoll cum. plclt'ncss of ulher delalls such 3.'i dimensluns and quantiUd or fur suhsl.ulIlaUng InslnJctlol15 for In51:lIl;&tlon or pcrfonn:tJ1cc of equipment or systems dClllKncd hr the ContDclar. illI ur which remain Ihe re!\pumlhi1lt~' lIf Ihe Contr.lctor to the exlent required hI' Ihe CUl1\r'Cl Ilocumelll.. The Archllect'. revlow ~h:&ll nUl (,"U1151ltute :lPlJrO\'OII of silfet)' prcC"JuUons Of, unlCM tJlhc:n\'lsc spl'clficall~' Malcd h~' the Ardlilect, of COr\.\lrucllun rnl"iUl~, rnelhnd~. tcchnlques, sequcnn'~ or procedurr:s. The ....rehltect's OIppcoval of a ~pcdnc Item ~hall not Indll"ollc appro\'al or ;111 a.'iselllhl~' of which the Item b ;l l'OI1lpc.lI1enl, When rn)fC50~llll1al ccrlil1catitH\ tlf pcrhmnante characlerbtlcs of materials, S~'MCIl1S or equipment Is required hy the Cont~ct Oocurncnt:ri, the ArchiteL't sh;!U he entilled to rcl~' upnn such l'enlOl-Jtllln Itl cSlilh1t~h that Ihe f1tllcrials, srstems ur equip' 1111:nt wllllllect Ihe pcrformal1l'l' criteria required h~' the Con- Iract l>unll1lCl1l!'l, 2.8.13 The Archllecl ,h.llp,,,,,,e Ch.oKe Order. .nd Cun, strucUon ChJIlKe DIrCt.:li\'cs, wllh supportlnM documentation .nd d.t. il deeme<l nel'e.....f). hI' Ihe Archllecl .., provided In Suhp""'MrJph, ,\ 1.1 .nd .H .\. for the Owner', .pprnv:ll :lJld cxct:utlnl\ ill Jcctlllbncc \\'lIh till' CumrOlct Documents, and may ;luthorlze minor chanKL's 111 the "'urk not InvnlvtnA illl Jdluslmenl111 Ihc COl\lrOlCI Sum or an extenshll1 of Ihe Conl~ct Tlmc which arc fltlt inmmt!'Jtl"11t \\'1111 lhe lrm'lH ()Ilhe Cnnlr:act l)llfUl1\l'llt!'l 2.6.14 Tile Mdlltl'l't \hJII ronduu impel.'llom to dClennlnc: thc UJll' Ilr dJll'!'I 1.)1 "iUh,IJIUIJI1:lllllplctllHl and Ihe date ufnnill Ct lIupletllll1, 'ihJII u'l'l',\'t' Jnd furwJrLl 10 Ihe Owncr fur Ihc (h\'nl'(\ rC\'ll'W ;11I1\ It'CIIHh wrIllen W:llf:ll\lil's Jnll rdated d11l11111l.'l1h rl'qulfcLl Ill' till' CIJ)lIrJt.:t l.>ol'UI11Cnt5 :.Ind a.\.liCm" till'll hy I Ill' (:llnlr;tl'ltlr, Jnd "lull i""'Ill' J llnal (:ertilk3Ic fur Par. Illl.nt lIptllll'lllllpllJlln. Willi the ll.'quiref1\enlS of the Cunlnel 1)II(UI1Il'l1l'i 3 8141-1987 AlA DOCUMENT 1141 . l)\I,'Ntlt AfU:lIIHCl AliIUF."U.NT. IllllltTHNTII F.llITION. AlAe. ()19tt1 1111 "'''"leAN IN"'111' IT Il) AIHIIIIII."I', I'"'" NI\\' \,ilkK A\'INtT, N \1,', \1,'A'iIlINCiToN,IH: 101.111(1 .- C'\ .' 2.'.15 The Archilect .halllnterpn:t and decide m.nors con' cemlng pc:rfOrm:llICe of Ihe Owner :IJld Cont...clOr under Ihe rcqulremenu or the: eOOlDet Dm~mcnlS on wrillen rc:quC!t of either lhe Owner or Contractor. nle ^n.:hUcl't's rCjr()~ to such rcqu~L5 shall be m:lde With fC-.1SC.>I1Jhlc promplOe~\ and within any IlIne IImll. .greed opon. 2.5.15 Inlerpret.tlons and doclslons 01 Ihe Architect .hall he conslslent with Ihe Intenlof :IJld ",..on.hl}' Infer,hle fromlhe COnt"ct Document. and .hall he In wnllng or In Ihe fOmlOr d...wlnll5. When maldng .uch Interpreulions .nd Inlli;u de,'I. slons. the Archllocl shall end..vor 10 sccure r.llhfol pc:rr",. m:lllce by bOlh OWller and Cont"clor. .h.1I nOl .how p.nl.III}' 10 either. and sh;ill nOI be Ullhlc: fur rdult\ of Illlc:rprC:131Ioru or declslons.o rendered In good blth. 2.'.17 The Architect's decision. on m'lIe" rdJllng III .."he. Ilc elfoct shall be final If con.lslenl with Ihe Intenl expre"ed In Ihe COnt"CI Document.. 2.'.1' The Architect .hall render wnnen dcelshln. within. r""",n.ble tlIne on all cWln.. dlspul..or olher mane" In qu... lion between the Owner and Contractor relallng 10 the execu. tlon or progrcM of Ihe Work .. provided In Ihe ContraCl Documents. 2.'.11 nle Archilect's declsl)o> on clalIn.. dl'pule, or olher m.ners, Including Ih05< In qu..tlon Ix:lween Ihe Owner and COnt..Clor. excepl for Iho5< relallng 10 ae5lhetlc dfect .. pro' vldcd In Subp....!lJ':Iph l.6.17. shall Ix: suhiect 10 arbltralion "-, provided In Ihb Agreement :IJld In the Conl"cl Documents. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The servlc.. described In Ihls Article ~ Jre nOllncluded In 8..lc Servlc.. Unlc55 so Idenllned In Article Il. and Ihey shall Ix: pald for by the Owner.. provided In Ihl. Agreement. In .ddlllon 10 Ihe compc:o>.lIon for n",lc Service.. The 5<l\'Ices desc"bcd under I'...g...phs ~.l :IJld ~.4 sh>ll ani}' he provided If ,ulhorlzed or connrmed In writing b}' Ihe Owner. If ""rvlces described under Contingent Addltlon>l Ser\'lces 10 P",~"ph ~.3 .re required due to clrcumslance! Ix:}'lllld Ihe Archltect's control, Ihe Archilect .hall nOllfy Ihe Owner p"'" 10 com, menclng such 5<rvlc... If the Owner deem. Ih.. soch ..rvlces described under P...g...ph 3.3 .n: not required. Iile Owner shall glve prompt wrlnen notice 10 the Archllect. II Ihe Owner Indlal.. In writing th.t >II or p.n 01 such Connngent Alldl' Ilonal ServiCe! are nnl required, Ihe Archltcel ,hallha\'e no obll. g.lIon 10 provide th05< service.. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extcrulvc reprc5Cnt:lllun al the 'Ill' IhJn I~ described In Suhpmgraph l.O. ~ Is reqUired. Ihe Ardlllecl ,hall provide one or mure I)coleel Rcpn:sc:ntall\'l''l 10 ,&."'11\1 111 l.:...uy. Ing OUI such .1Idltlon>l on..lle re'pon'lIl1lillCl. 3.2.2 Projecl Represent.tlves .hall he ,clCCle". ,'mplll}'ed and directed b}' Ihe Archhect, .nd Ihe Archlle"1 ,lull he mrnpcn. saled Iherefor .. .gr..,d h}' Ihe Owner alld Ar<llIlect. The dulles, rcspon.sibilltlo and IIm1tallUlu or aUlhllrll\' tit Prole!.:1 Represenl'lIves shall he :as descrihed In Ihe edllllll\ 01 AlA ()c:x:umcO( U'~2 (Urn:nt:lS of the WIC 1)llhl\ ^lolrccll\t"nt, unlc;\.\ nlhcrwlsc :lMn:cd ( 3.2.3 Through Ihe ohservatloo> by such Prolcet Represen. I.llves, the Architect ,hall end..vor tr> provide funher prolec. lion IlIr Ihe Owner agalnsl defects:lJld denclcnci..ln Ihe Work. hut the fumt.shlOH o( 5\1ch prolect representation shall 001 modify the rip)ll.5, rC5pomihllllic.5 or nhliKJllnns or the ArchUccl ;l5 dC5cnbcd cbewhcre in Ihl! ^KCCCIIICIlt. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 MaktrlK rcnlillll1!l III ()r.lwin~. SpeclOcallons or IlIller docuntcn15 wlltn melt rc\'lslollS ilrc; .1 Inco"-,"leOl with appro\'.ls or Instrucll"ns preVIOUSly given hy Ihe Owner, Indudlng revlslo", m.de nece.. my h}' adlll\Unents III Ihe Owner's progl':llTl Or I'rol' eCl hudgel' .2 required b}' Ihe en.C1me", or revblon of codes, I.ws or regulations ,ubsequent 10 Ihe prep....tlon of such dOCUmCnl5; or .3 due 10 changes required... resull of Ihe Owner's (all. ure 10 render declSlOo> In . limely manner, 3.3.2 ProViding service. required h<:c:ll1se of .Ign,"",", chmges In Ihe Proiecl Including. but nOlllInlled 10, size. qllil1. Ill'. complexJlY. Ihe Owner'. schedule, or the method of bid. ding or negol"'lIng .nd conl..CIlng for conslrucllon. e"cpI for services required under Subpmg...ph ~.2,~. 3.3.3 Prepmng D...wlngs. Spcctnc:lllon. :IJld mher documen. t.tlon and supponmM dn.. e\'>lu.llng Cont...C1or'. proposals. and pm\'idlog olher 'ervlces In connection with Ch:lJlge Orlle" wd Construction Chwge Dlrecll\'... 3.3.4 Providing ""'Ice. In connecllon wllh eV>lu'"lng .ub'lI. lullons propo,ed h)' Ihe Conl...Clor and making ,ubsequem revblon. 10 D"wlngs, Spcclnalloo> :IJld olher document.tlon r..uillng Iherefrom. 3.3.5 Providing consuh.llon concerning replacemem of Work dam.ged by nre or olher cause during co",truCllon. :IJld rur. nlshlng .eIVlces reqUIted In conncellon wllh Ihe replacemenl of .uch Work. 3.3.' I'rovlding "m<es m.de ncce"a'Y b}' Ihe dd.ult of the Conl..ctor. b}' m'ior defects or denclencie.ln Ihe Work oflhe Com..clOr. or b}' lallureof pc:rfonnance of either Ihe Owner or COn1r2ctor under the Cl)nI~ct for Construcllon. 3.3.7 Pro\,ldlng ,m'.ces In ev>lu'llng:ll1 <Xlen.lve numlx:r of cI.lIns submllled h}' Ihe Conl..clor or olhe" In connl:Ctlon wllh Ihe Work. 3.3.' I'rovldlng ,emccs In connecllon wllh . public h..rtng. ..bll..llon proceeding or legal proceeding eXCcpl where the Architect Is p.n}' Iherero. 3.3.1 Prep.rlng documr",. lor ;ulem.le, sep...,e or sequenllal hlds or prOViding ""'I<e. In conncellon wllh bidding, negoll.. lion or c()n~tr\Jl'lIon prim In the complC:llnn of the Construc- lion OtJl"Ultlent:\ I'ha.\c 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 I'ro"ldlnR anal}'"", 01 Ihe Owner's needs :IJld progr.un. mlttM the rc:qulrc:ment3 of lhe Project 3.4.2 I'rovldlng nn.nclal f<:lS.bllllY or ulher ,pc:clal 5Iudle!. 3.4.3 I'n,vldlnM plan'lInM survey'. sile ev.lu:tllons or com. P;.1r.llh'c !lludjC'~ ()r Ilrtl!i{lC(II\'C !'!llles. AlA DOCUMIHT .1'1' OI&'NER.ARCllITEcT .\[iR.EfMENT' fOUIlTU.NT1t fDITION' AlAe. 1{l11ffl1 Tltt AMERICAN IN'iTIT1rTF. OF "RelllfF-en, 11~\ NEW 'YORK AYf.NUE, NW, VilA511INCiTON, U c ':Ol)l!tt 8141.1887 4 ( 3.4.4 Provlulng ,peclol ,urvey', envlronmen.:II 5Iuule. :ll1U ,ubmLuloll5 requlreu (or approvals o( governmemol.u.horllle, or o.hers having lurlsUlcllon over Ihe I'rolecl. 3.4.11 Provlulng servlc.. rela.lve '0 fu.ure f,clhlle" 'Y'lenlS :ll1d eqUlpmen., 3.4.1 Providing ~rvlccs co tnvesllR~le c:xl~lIn~ conditions or (acUllle, or '0 make mea.,ured drawlnR' Ihereol. 3.4.7 ProvhJinK ~r\'u:es 10 verify the ;u:curJC)' or dr.lwinK-' ur o.her In(ormallon lurnlshed by the Owner. 3.4.' Providing coorulna.lon o( con5l",cllon perlornted hI' \C'par.nc: COnlr.lCCors or by the Owner's own forces ;and l'oon.h. nation ur 5Crvlces required in connecCion WHh c.:()n~lru(1I0n performed anu eqUlpmem ,upphcu hI' .he Owner 3.4.1 ProViding services In cunnecllon with the work Or;l (Oil' slNc1l0n m:u13ger or SC'ptr.ne consultants rClalnecJ h~' .he Owner. 3.4.10 Provlulng detailed e,lImale, o( ConSlrucllon (ost. 3.4.11 Provlulng del2lleu qU:II11lly ,urvey' or lI1,enlO..e, of malerW. equipmem and labor, 3.4.12 PrOViding :II101y... o( owning :II1d oper>lIng C05l,. 3.4.13 ProViding Imerior d..I8O :II1d mher ,lm1l.r 'ervlce' required (or or In connecllon wl.h Ihe .elec'lon, prucuremem or 1n5l:lllatlon 01 Cumilure. fumlshinll5 :II1d rela.eu equlpmenl. 3.4.14 PrOviding ,ervlc.. (or planning ten:ll1. or rent:ll 'p.ce, 3.4.111 Making In,esUIl''UOll5, In'e~'ones o( materuts or equip- mall, or valuaUoll5 :II1d dc:uUcd appr:Us;ds o( exislU\g I.cilitles. 3.4.1' Preparing a"" o( reproducible record dr.lwlngs ,how. Ing slgnl/lC:Ull Chang.. In Ihe Work maue during conSlruc.lon basaJ on m:uked,up prin.., drawings and other <bta fumi.hed by the COntraClor 10 .he Archilect, 3.4.17 ProvlUlng asslsl:ll1ce In Ihe ullll..llon of equipmenl or sy,lerll5 ,uch :IS 1..llng, aulO5llng and balancing, prep,uatlon 01 opcr.l.lon :II1d malmen:ll1ce manuals, lralnlng personnel (or opcr.lllon :II1U malnlen:ll1Ce, :II1d cOll5ullallon uurlng oper.lllon. 3.4.1' ProViding servlc.. after Luu:ll1ce to the Owner o( Ihe lIn:ll Cenlncale (or Payment. or In lhe absence 01 a nn:ll Cer, linclle for Paymenl. more than 60 <by, after Ihe dlle o( Sub, SlanlW Completion o( Ihe Work. 3.4.1' ProvlUlng serviCes of cOll5ull:ll1.. for olher Ihan archl. lectural. SlruclUroJ. me<:banlcal and eleclrlcol enRlneenng pur, lions of tlle Prolecl provlued :IS a pan o( Basic Service,. 3.4.20 ProvlUlng:ll1Y olher services nol otherwl.. Incluued in thls Agrccmenl or nol custom:ully Cumlshed In accortlance with generally accepled :uchitecturoJ prac.lce. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 The Owner ,hail provide fuU Inlormallon reRardlng requiremen.. lor the Prolect. Including a progr.llTl \\'hieh ,hall .set (onh the Owner's objectives, schedule, conSlr.unls OlI1U en. lerla. Including 'pace requirements an<l relallomhlp', llexJ, bUlty. exp:ll1u.bility. 'pccW equipment, '1'5Iem' anu 'lie requiremen.., () , '. 4.2 The Owner ,hall es",bllsh and up<b.e an overall buuget for .he Prolecl.lncluulnR Ihe Conslructlon COSl, Ihe Owner's olher cu,ts and r....onable conllngencles rela.eu 10 all of these co,... 4.3 II ,eqlleSled hy Ihe Archllect, the Owner ,holl fuml,h evl. lienee Ih;u Onam:iJI arr;UlKcmcnts have: 1)((0 made 10 fulmllhe {)wncr'~ (lhllKJllons under this Agreemem, 4,4 The O\\'ner .h:lll de.lll/1a.e a ,epresen.atll'e aUlhorized 10 '" on Ihe Owne,', heh:llf wllh re'pecI 10 the I'rolecl, The Owner or sUI.:h ;.authurlzeu reprcSCOlaUYC: 511;1.\1 rcnder dec:tslolU In a Ilmely manner peMalnlng 10 documems ,ubmilled by Ihe ArchllecI In ",uer 10 avoid unr=nable delay In Ihe orderly ano ~qucnllal pruMrcS5 of the Alchilccc's services. 4.5 The Owner ,hail furnish ,urvel" ue,criblng phy,lcal cbar.l<lert,tI<>, legal Iimll.tlons :II1d ulllity locations (or Ihe ,ile 01 the Prolecl, :II1U a wrlllen leg:il ue'ClIpllon of Ihe ,ile, The ,urvel" and leg:il Inlormallon ,hall Include. :IS applicable. grade, :II1d Une, of ,tree... alley" pavemenlS :II1d adlolning property and "ruCtures: aulacenl drainage: righ..-of.way, restrictions, C",lSCmcnt5, encroachment.5, lonms. deed rcstrle. lion" bounWrie, and conlOurs o( Ihe ,ile; locallons, dlmen. 'Ions and nece~,",y wla PCrutnlnR '0 existlnR buUdlnll5, olher Improvemen.. anu Irees: :ll1d In(ormalion concemlng ava1lable ulUllY servlc.. :II1d lines, balh pubUc and private, above and below gr.lue. including Invens and dep.lls, AIIlhe Informalion on Ihe ,urvey ,hail be referenced 10 a prolecl benchm2tk, 4.' The Owner ,h:lll Curnlsh Ihe servlc.. 01 gcolechnlcal engJ, neers when ,uch 'ervlces arc requcsted by .he Architect, Such ,erYlccs may Include but .re nOI IImlleu 10 lesl borinI!'. tCSI Pit', dClermlnallon, 01 soli bearing volue,. percolalion I"", evalU<lllons 01 Im.rdous malerials, ground corro,lon and rests- Ilvlly leSlS. Incluulng necessary ope12l1on' for anllclpatlng sub. ,0U conulllo"" wilh repons and appropriale pro(esslonal recommendations. 4.'.1 Tbe Owner ,hall furnish Ihe services o( olher consul. 1:111" when such 'ervlce, are reasonably required by Ihe ""ope o( Ihe Prolecl :II1U are requested by the Archltecl, 4.7 The Owner ,h:lll Cumi,h SlruclUroJ, mechanical. chemical. air :II1d Waler pollullon .e,,", Ie'" for hazardous materials, and olher labor.llory .nd environmenl:ll les.., In'pcclloll5 :II1d repons required by law or Ihe Contr.lct Documen.., 4.' The Owner ,hall Cumlsh a11leg:il. accounting and Insur.lllcc counseling servic.. '" m.y be neceMary al :II1Y lime for Ihe Prolecl, InclUding audltlnR services .he Owner may require 10 verify Ihe COl1lraClor', Appllc>.lons lor paymel1l or to :rsccnaln how or for whal purpose, the Cunlr.lctor has used the money pald by or on behalf 01 the Owner. 4.' The 'ervices. Infol111a.lon. ,urvey' :and repons required by Pangraph, 4.~ IhrouRh 4.8 ,hail be furnished at Ihe Owner', expense, and the Archllec. ,hail I", el1lllied to rely upon the aCCUr.lcy and complelene55 thereof. 4.10 Prompl wriuen nlltlce ,hail be gtven by Ihe Owner 10 the Archl.ect If Ihe Owner becomes aware 01 :II1Y (auh or de(ectln Ihe: Prolect or noncon(orm;Utcc with the (0011';1(1 Documents, 4.11 The propo..d latlRu.ge III cenlncate, or cenlficalioll5 ..qu"led o( Ihe Archlleet or Archl'ect's con,ullanlS shall be ,ubmllled IU Ihe Archlleer (or review and approv:ll at least 14 <lay' prtor to execullon. The Owner ,hail nol ..quesl cenlnca. 1l0ll5 thai would require knowledge or servlCd beyond the scope of .hls Agreement. II B141.1817 AlA OOCU"HT 1514' . OVt'NER.ARClllTECT AfilUEMENT . FOllftTEfNllI EDITION' AlA' . to 1981 TltE AMERICAN INSTlllrrE OF ARCIUTEcrs, 11~'" NE'" YORK AVENUE, NOW, WA!iltlNGTON, DC, 200116 ,.. I \ ARTICLE 5 CONSmUCTION COST 5.1 DEFlNIT10N 5.1.1 The COIuuucllon CO" .h.11 be Ibe 101;al CO" or e"I, mated cmllo Ihe Owntr or all dements of Ihe Prolecl dcslMncd or .pecllled b)' Ihe Archll<Cl. 5.1.2 The CO"'tNCllon Cml .h;alllnclude Ihe emt .t cunelll m:arkel I1Ile. ot bbor :and m"erlm turnl5hed by tbe Owner :md equlpmenl de.lgned, .pertned, .elecled or .pecl;ally provided tor by Ihe MchlteCl, plus. ,...",".ble allow,,"ce for Ihe Con. I,"CIOr'. ove,h..d :md proOI. In .ddlllon, . r...on.ble ;allow. ance ror conllnMcnclc5 ~haJl be included (or market condjlion~ .. Ihe lime of bidding :arId tor ch:mge. In Ihe Work during conslruccion. 5.1.3 CO",INcllon COOl does nOllnclude Ihe cumpen"lIon ot Ihe Mchllect ,,"d Mchllett'. con.ull:lJ1I', Ihe com ot Ihe I.nd, rlshlS-ot.W'y, On:anclng or uther Cl>'LS which ore Ihe re.pon. .lbUlty of Ihe Owner :IS provided In Article ~. U RE8PONSIBlUTY FOR CONSTRUCTION COST 5.2.1 EvoJlUtlolU of Ihe Owner'. Project budger. prellmln;uy ..11m.les of COlUlruCllon Co.t :and detaUed e.llm.les of Con. .INellon Cost. if :any. prep:uetl by the Archilect. repr....nt Ihe Archilect'. besl judlllllem :IS . de.ign profe5.\ion;al f:ll11UI.. wllh Ihe eolUlNctlon Indumy. It Is recogniZed, ho\\'e\'el. th.. nei. Iher Ihe Mchllect nor Ihe Owne, h.. control over Ihe COOl of boor. m:ltcrbls or equipment, OVer the COIllr:&CIOr'S mClhcH,b of delermlnlng bid pric.., or over competitive bidding, m;uket or negolbllng condltlolU. Aceordlngly. the Architecl c:mnol 1lJ1d does nOI wamnl or repr...nt th.. bids or negoll..ed prices wlll not v;uy from the Owner'. Project budget or from :my ..11m.le of COlUINctlon am or ev;alu'lion prepored or .greed 10 by the Mchilect. 5.2.2 No llxedllmll of ColUtNclloo CO'I .h;aJl be embll.hed .. a eondltlon of Ihls Agreemenl by the furnbhlng. propo.;al or establl5tunelll of . Project budget. unless .ucb Oxetlllmil h.. been agreed upon In wrillng1lJ1d .Igned by Ihe p.ni.. herelo. I( .uch a llxed limit h... been ....blbhed. Ihe Architecl .h;all be permitted 10 Include comlngencl.. for de.lgn. bidding :md price esCllallon, 10 delennlne wh.. m'lena1s, equlpmem, com. ponent.ystenu and Iypes ot eolUtructlon ore 10 be included In the Contract DocumenlS. 10 make reason.ble adjwunenlS In the scope of the Project and 10 Include In the COIlll1lCI Docu. menlS a1tem..e bids 10 adlust Ihe COlUtlUcllon Cml to Ihe Oxed limit, FlJted IImllS.1I :my..ha11 be Incr=d in Ihe amoum of.n Increase In the Contract Swn occurring .fter execullon ot Ibe COntract for COlUtruellon, '.2.3 I( the Bidding or Negolbtlon Phaoe h... not commenced within 90 days after the Architect .ubmllS Ihe Con.trucllon DocumenlS 10 the Owner, any Prolect budgct or Oxed limit ot COlUtructJon Cost .1uII be .djusled to reOecI ch:mge. In Ibe generallevel of prices In the COlUlruction Indu\lf)' bel ween Ihe dale of .ubml5.\lon ot the COlUtruellon DoeumcnlS 10 tbe Owner and the dale on which proposals ore 'OU!lhI. 5.2.4 If a llxed limit of ColUtrucllon eosl "d,u'ted ... pro- videdln Subparagraph 5.2.3) " exceeded hI' Ihe lowesl bon. Ode bid or n"llotlaled proposal, the Owner ,halt .1 glve wrinen approval of :an Incr.."", on 'uch Oxed IImlr; .2 .uthortze rebidding or renegotiating ot tbe Project within a reasonable lime; (, .3 IIlhe Projecl Is .b:mdoned. lennln..e In aceordance with P.f1IIlt1Iph H.3; or .4 coupel1lle In revblng lbe Projetl scope:md qualllY'" required co reduce Ihe ConslnJcllon Con. 5.2.5 If Ihe Owoer ChOOSCIIO proceed under CI.use 5.2.4.4. Ihe ^rchlletl. wllhoUI .~ditlonal charge, .hall modify Ibe Con. tract ()ocumen.. .., necessary 10 comply \\'llh Ihe nxe~ limit. If e...hll.he~ .., . condition of Ihb Agreement. TIle modlOcallon of Colllract Docu",en.. .h;all be the limit ot Ihe Mchitect'. r..pon.lbillly arising OUI of Ihe est.bl15hment of. nxed Ilmll. The ArchllecI .hall be enlllledlo comperwllon in aceordance with thb Agreemem for all service. performed whether or nol lhe Corutrucliun 11h;uC' is commenced. ARTICLE 8 USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS ..1 The Drawings, SpeclOcallons :md other documcolS pre. pared by Ihe Mchitecl for Ihls Projecl are irutrUmCOlS of the Archllect'. .ervlce tor use solely wilh respect 10 this Projetl :md. unl.... olherwlse provided. Ihe Mchltect shall be deemed Ihe ,ulhor ot Ihese documenlS and sh;aJl 'etaln all eommon law, st.IUtory :and other reserved rishlS, including Ihe copyr1ghl, The Owner .h;aJl be permUled 10 retain copies. includlns repro, dodble copies. of Ihe Architect'. Drawings, SpedftcaUons :and ntber documem. for Infonn.lIon and reterence In eOMectlon wilh Ihe Owner'. use and occup:mcy of Ihe Project, The Archl, lect's Drawings, SpeclOcatlolU or olber docwncoLS shall nOI be wed by Ihe Owner or olhen on other projeclS, for addlUons to Ihls Project or tor eomplellon of thb Project by others. unless Ihe Arcbllecll. .djudged 10 be In defaull under this AsreemCl1I, except by .greement In wrillng and with appropriate eompen. ..tlon 10 Ihe Mchilect. ..2 Submi"lon or dlslribullon of documenlS 10 meet oflldal r"llulalOry requlremen.. or for similar pUlJlOSCI In cOnnection wilh Ihe Project Is not 10 be constNed as publication In derosa' lion ot the Archllect'. reserved rishlS. ARTICLE 7 ARBITRATION . , panleslo Ihb Agreemem orblns out ot or rebllnglo this menl or br..ch tbereof .ball be sublect lo:and ded ubi. tl1lllon In accordance wllh the COlUINcllon Ind Arbltra. tion Rule. ot Ibe American Mbitl1lllon ,U1<X1a currently In effect unl.... Ihe panies mUluaIly .gree olh be. 7.2 Ocm:and for arbitl1lllon .hall be ed in wrillnS with the mher p.ny 10 Ihls Agreement :m Ith Ihe American Mbln". lion Assoclallon. A dem:and to itl1llion .h;aJl be m.de wUhln a r...on.hle lime after t Wen. dlspule or olher nuner In quesllon h... .risen. In evem .h;aJl Ihe dem:md for arbUI1ItiOn he made afler Ihe e when irulitullon of legal or equitable proceedings b on .uch cWen. dlspule or other nuner In qUCIoon \\'0 be h:ured by the appUcabIe .UlUles of 1ImIt2tions. N bitl1lllon .ruing OUI of or relallng to this Asreement clude. by consoll<l>llon. joinder or In :any other manner, AlA ~ I'.' . O'I'NU.ARCIIITtCT AGR.E!.M!NT' fOUJlT!lNTIl wmCN' A.L\. . C>19ft1 Till! AMERICAN INSTlnfTE or ARCIlITECT5, 17~' NEW YORK AVlNU!. N.W , WASHINGTON. 0 C lO(~ 8141.1117 8 E.! o erm.nl Slgn.d hI' Ih. Own.r. Archil.". :II1d lUll' olh.r .01111' soughl 10 be: /oln.d. COlUent 10 .,h""lIon Involvlns ddlllon.1 person or .ntlly 'hall nlll con'lIIuI. consent to arb on ot any clatm. dupuIC: ur othrr nUtler In qUC:Sllon 001 d(S.('rl n the wntlc:n COll.K"nc or \\IlIh ;I person or .nlily not named or lhed Ih.reln. The foreRllllIR 'R,,'e. meOl to arbllr~te and other ecmCnt5 10 ;uhitr;3lr willi an addlllonal per"," or .ntley duly c nted III hI' Ihe p.nle, 10 Ihl.! Asrerm.nl ,hall be: 'peClnC2Jly ell rahle In ",cnr<lance wleh appllc.ble L1w in :Illy coun h.vllIS /u ctilln Ihereof. 7.4 The .ward rend.re<l hI' Ih. arble"lor or arhlela ,hall h. nnal~ :IIld ludgmenl may be: .m.r.d upon illn accordan ARTICLE 8 TERMINATION, SUSPENSION OR ABANDONMENT 1.1 Thl.! Asreemem may be: cermlnal.d by ellh.r p.ny upon nOli.... Ih:lll sev.n day,' wrin.n no tic. 'houl<llh. olh.r p,ny rall ,ub't:lllllaUy 10 perrorm In aeeord.1ne. wllh Ihe lerm, of Ihls Agreanrnl chrough no f.1u11 or the p:uty lnIllallng Ih. lermln:llion. 1.2 If Ihe Pro/eel I' 'uspended by Ih. Owner for more Ih:lll 3ll eomecutive day,. Ih. Archllccl ,hall be: compe",ared for ..r, vices perrorm.d prior to nollc. or ,uch ''''pen,lon. Wh.n Ih. Projectls re.!umed. Ih. Archll.cI', compen..llon ,haU be: .qUl' lably adj"'led 10 provld. ror .xpense, Incurre<lln Ih. Inlerrup. lion :IIld lc.Iumpllon or Ih. Archl~.ct', ,.rvlc.,. '.3 Thl. Agr..mem may be: termlnar.d h)' the Owner upon nOlleos Ih:lll sev.n wy.' IVrin.n notice 10 Ihe Archll.cI In Ihe .v.nllhallh. Pro/eells perman.nlly ab:ll1doned. If Ihe Projeel ls abandoned by Ihe Owner ror mOre Ih:lll9O conseculiv. da}~. Ih. Archll..1 may I.renlnal. Ihl. Agreem.nl by glvlns Wlln.n nOllce. '.4 Failure or Ihe Own.r 10 make paym.nlS 10 Ihe Archleeclln accord.1nce with Ihls Agreemenl .hall he con,idered 'UhM:II1tial nonperrorm:ll1ce :II1d cause ror I.rmlnallon. '.11 II' the Own.r r'lls 10 make payment ,,'h.n <lue Ihe Archl. reel (or services and cxpen~5. Ihe Architect mar, upon .!iC\'cn days' \\'rluen Oouce: to the Owner. suspend performance of Ser. vlc... under Ihl.! Asreem.m. Unl... pa}'mem In full Is rece,v.<I by Ihe ArchlercllVlehln seven wI" or the dale of Ihe no lice. IIle ''''pe",lon .halllake .rr.CIlVllhoUI fun her nollee. In Ihe .\'.01 or a ''''pelUlon or ..rvlc.... the ArchitecI ,hall h.ve nllllabllley 10 the Own., ror del.y or <Urnage caused Ihe Owner h.cau.\C or 'uch .uspe",lon or seIVlc... ... In Ihe eVem of lerenln.tion nOI Ihe faule of ,he Archil.Cl. Ihe Archllecl.hall be: compelUal.d for ..rvlc., performe<l prior 10 I.nnlnallon. tog.ther IVleh R.lmbu...bl. Expen,e, Ih.n <lu. :II1d all Termln.tion Expenses as denn.d In P.ragr.ph R.? '.7 T.rmlnallon ExpelU... ar.ln .<I<llllon 10 campen,,,,,," for O-.;Ic :II1d A<ldlllonal S.rvlc.... and Inclu<le e'pe",e, which arc directl)' :utrtbut~ble tn lennln:ulon. Tc:rmin:1lhm l::."pcn~es ~hJII be compuleu as ~ pc:rc('m~ge of Ihe IOI~I c:ompc:n.'JtIllll for D:I.\lc S.rvlc.. ,,"<I Addlllon.1 S.rvlc., <-".med ,olhe 11m. oller. mlnation, as rolluws: .1 Twent)' percent or Ihe IOlal cornpen.ullon fllr UJ.'ilc and Ad<llllonal S.rvlc.. <-".m.d 10 dat. If lemHnallon oCCUrs before or durlnR the preueslMn, ~Ilc ;lOal}'u" l}r Schemallc De,lgn I'h,,-,e.; or 7 B141.1817 () ., .2 T.n percene nr Ihe 10lal comperuallon ror Ila.Ilc :IIId Addlllonal Service.! ram<<l 10 dale II' I.nnlnallon occu.. <lurinS Ihe Design Developm.ne I'h...; or .3 Five perc.ne of Ihe lOlal compe",allnn ror O:l.\lc :II1d Addlllonal Servlc., ram.d 10 dat. II' lennlnallnn O(:cur~ uurirlK ;my 5ub~quc:nt ptu.\e:, ARTICLE 8 MISCELLANEOUS PROVISIONS II. t lInle" Olh.rwISC provided. thl.! Asreemenl ,hall be: gov. ern.d hI' Ihe law or Ihe prinCipal place of bWlne... of Ih. Architect, 11.2 T.rm, In Ihi, Asre.m.1II ,hall have Ih. same mranlns :1.\ Iho"ln AlA Documene A201. General CondlllolU orlhe Con, lIaCI for CO",lrucllon. currene:l.\ of Ih. wle or Ihls Asr..melll. 11.3 C.lI.Ie5 or .ellon b.tween the p.nies 10 Ihls ASreemene p.nalnlng to aclS or faUure.! I() aCI shall be: deemed 10 have accru.d :II1d Ihe .pplleable 5Iatul... or IlmllallolU shall com. m.nc. 10 run nOllaler Ih:lll .llher Ih. dal. or SUbsl:lllllal Com. pl.llon for 'CIS or failures 10 aCI occurrtnS prior 10 Sub'lanllaJ Complellon. or Ihe dale or llsuance or the final C.nIOClI. ror I'aym.ne for .CIS or fallur.. 10 act OCcurrinS arler Sub'lanllaJ Complellon. 11.4 Th. Owner :II1d Archllecl Walv. all righlS .galnsl ..ch olher :II1d a8a/lUt Ih. coneraclo... COlUullanlS. agrnlS :IIld employees of Ihe olher ror <Urn.ses. bUI only 10 Ihe eXlcol cov. .red hI' propenl' In,uranc. durlnS con'lructlon. .'CCPI .uch IIghlS :1.\ !he)' m.y ha\'e 10 Ih. proceeds or .uch Insurance as..1 fonh In theedlllon of AlA Documrnl AlOI, Gen.ral CondlllolU or the Conl"ct for CO",lrucllon. rurrene as or Ihe wle or !hls Asreemene. The Owner :II1d Archllect rach shaJJ require .lmllar walv... from Ihell contraclo... consule:llllS :II1d agcoLl. 11.11 Th. Owner:llld Archlleel. re.!pecHvcly. bind Ihcmselves. Ih.lr panne... ,ucce""... asslg", :IIld 1.ga1 rcprcsencallves 10 Ih. olher pan}' lOlhl. Agreement :IIl<llo Ih. pann.... ,ucces. so... assll!ll5 :II1d legal represelllarlv... or such olh.r p:uty wllh respect 10 all cov.n:ll1L' of Ihl.! Asrerm.Ol, N.llher Own.r nor Archil.cI ,hall :I.\"8n Ihl, Agrermelll wilhoul Ih. wrinen con. '.nl of Ihe olher. 11.I1 This AW..mene repr.,enLllh. .lIIlre and Inlegrated agree. mene helwern Ihe Own.r :II1d Archil.ct and .upersedes all prior negollallo",. r.pres.lllallon. or 'sreemrnlS. either "'111. I.n or oral. Thl.! Agr.em.1II m.y he amended only by wrinen In5lrumelll 'Igned bl' bOlh Own.r :IIld Archl.eee. 11.7 NOIhlns conealn.<lln Ihls Agrerm.ne ,hall C""'le a cone"c, lual r.l.llonslelp wllh or . cause of acllon In favor or a third pany 'Sal",1 .lIher Ih. Own.r or Archllect. II.' lInleM olleerwl.le provided In Ihls Asreem.nl. the Archllect :II1d Archll.ct's C005ull.nlS ,hall h.ve no ""po",lbllllY ror Ihe <l1,cov.'Y. presenc.. h.ndllng. r.mOVal Or dl.!posal or or expo. 'ur. of p.rsons 10 hU:lrdou., mar.rl.ls in .ny rorm allh.l'roject 'II.. Indu<1lng bUI 001 Umll<<l 10 asbes.os. 1l<besl05 productS. polychltlrtlUlcd btphen)'1 (I'COI or olh., 10l<lc subslanccs. 11.11 The Archil.cI .'hall have Ih. rlshl 10 Inelud. rcpresenca, lions of Ihe <I."sn uf Ih. I'mlecl. IndU<llng phOlographs of Ih. exterior :md Inferior, amnnM the Archllect'5 promotional and professional mat.rlals. Th. Archil.c!'s mareriab .haJJ not Inclu<l. Ih. O,,'n.r', cunlldenel.lor propn.cary Informallon If Ihe Owner h:l.\ prevlou.,ly .d\'...<llh. Arehlleet In Wrillns or AlA DOCuMENT ,,., . 1)\I'NER.AR(H1TECT AGREEM!HT. fOURnfNTlt WlnON. AlA- . (11981 TIlE AMERICAN IN~T1TtlTE Of A"(.lIrfCTS, 11]\ NE\I' YORI( AVENue, N9i, WA5UlNOTON. DC.lOOO6 .- i , ,he spednc In(ormalion coNldered by Ih. Owner 'a be conn. dentlal or propri.tary. The Own.r ,hall provide pro(oslonal credl, (orlh. Archllect on ,h. conslructlon ,11lI1 and In ,h. pm, motional mat.rIaIs (or Ihe proJ'Ct. ARTICLE 10 PAYMENTS TO THE ARCHITECT 10.1 DIRECT PERSONNEL EXPENSE 10.1.1 Dlrec, P.rsonnel Expense Is d.nn.d as Ih. direct ,a1artes o( Ih. Architect', personn.l.ngag.d on th. Pml.ct and th. portion o( Ih. CO'I o( Ih.lr mandalory and cwtomary con, tribulions and ben.fits r.lat.d Ih.relo, ,uch as .mploym.nl tax", and oth.r 'Iatutory .mployee b.n.fits, Insur.Ulc., ,Ick leav., holiday'. vacallons, pension' and ,lmllar comnbulion, and ben.nts. 10.:1 REIMBURSABLE EXPENSES 10.2.1 Relmbursabl. Expense, are In addlllon 10 campen.., tlon (or naslc and Additional S.rvlces and Includ. .xpens.. Incurred by th. Architect and Archll'ct', .mployees and con. ,ultants In th.llll.res, o( Ih. Project, asld.mln.d In th. (allow, Ing CLtuscs, 10.2.1.1 Expense o( lransporl2l1oo In connection with Ih. Projec,; expenses In connection with aothorized out,o('lown travel; long-dlstanc. communlcallon,; and (e.. paid (or 5ecUr. Ing approval o( authorities having Jurlsdlclion ",'.rth. Proj.ct. 10.2.1.2 Expense o( reproduclioN. po'l2g. and handling oC Drawings. SpeclncatloN and olher documents. 10.2.1.3 I( aUlhorized In advanc. by Ih. Owner, expense or ovenlm. work r.qulrlng hlgh.rthan regular I:lles. 10.2.1.4 Expense o( renderings, modds and mock.ups mJUC3led by th. Owner. 10.2.1.5 Expense o( addltlonalln,ur.Ulc, COv....ge or limits. Including proroslonal lIablll,y In,uranc.. requesl.d hy Ih. Owner In .xcos o( thot normally carned by th. Archltecl and Architect', consultants. 10.2.1.. Expense o( computer,a1d.d d..11lI1 and drafting equlpm'OIIIm. wh.n used In conneclion with th. Proj.ct. ( 10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 10.3.1 An Inlllal paym'lll as set (orth In P....graph 11.1 " Ih. mlnlnlum paym.m under Ihls Agreem.nt. 10.3.2 SUb"'qu'lll paym.nts ror 1l~,lc S.rvlC.. ,hall be mad. momhly alld, wlter. appllcabl.. ,hall be III proportion to ..r. vied perConn.d wllhln eaclt phase o( ..rvlc., on th. basis 5C:t (orth 11\ SUbparag,"ph 11.2.2. 10.3.3 IC.nd to Ih. .xt.llllh.lth. lime Initially .>l.bllslted In Subpar.l8""fl1t 11.5.1 o( this Agreemenl Is exceeded or .x,.:ndc:d Ihrough no r.ult o( Ih. Architect. compensation (or any "r' vices render.d during th. .ddi,lonal period o( tlm. .hall be computed In Ihe manner set (ollh In Subp....g...ph 11.3.2. 10.3.4 Wh.n compen.allon Is based on . perc.nl.ge o( Con' 'Iructlon COlI and any pollloN o( th. Project are deleled or olheml.. nol con>lOlcted, compensation (or Ihos<: porllons or Ih. Proj.cI .hall be p.y.ble to Ih. 'xl'lll s<:rvlces ar. per. (orm.d on litO" portion" In accordanc. wllh the schedul. ..I (onh In Subp....g...ph 11.2.2. based on (I) Ih.lowdt bon. fid. bid or negotl.t.d propo.aI. or (2) If no .uch bid or proposal I. recelv.d, Ih. mo,t rec.nl prellmln:uy .>llmat. o( ConstNctlon CO,t or delalled ..tlmal. o( ConslOlctlon Co,t (or .uch por. ,Ions or Ih. Proj.ct. 10.4 PAYMENTS ON ACCOUNT OF AOOmONAL SERVICES 10.4.1 p.ym.nts on accoum or Ih. Archlt.ct'. Additional S.rvlces and (or R.lmbursabl. Expenses .h.1I be m.d. monthly upon pr...m.lIon o( Ih. Architect', .1'I.m.nl o( ..rvlces ren. dered or expenses Incurred. lD.5 PAYMENTS WITHHELD 10.5.1 No d.ductlons ,hall be mad. (rom Ihe Architect', com. pensallon on accounl o( penalty, IIquldal.d damag'" or other ,urns withheld rrom paym.nts 10 contraclors. or on accounl o( Ih. CO" or chang.. 10 th. Work olher than tho.. (or which Ihe Architect has b..n round 10 be liable. 10.. ARCHITECT'S ACCOUNTING RECORDS 10...1 Records o( Relmbul5abl. Exp.nse. and .xpenses per, talnlng to Addltlooal S.rvlces and service. perConn.d on Ih. basis o( a multi pl. o( Direct P.rsonnel Expense ,hall be avall. abl. 10 Ihe Owner or Ih. Owner'. ,ulhorlzed represenlOliv. at mutually conv.nl.nt 11m... ARTla..e 11 BASIS OF COMPENSATION The Owner ,hall compensate th. Architect as rollow., 11.1 ANINITIALPAYMENTo( ----------------------------____________ DoIlal5{' ______ ,hall be made opon .xecullon o( this Agrecm.nl and credlt.d 10 lit. Owne,., account at nnal paym.nt 11.2 BASIC COMPENSATION 11.2.1 FOR IlASIC SERVICES, as dc:scnbed In Article 2, and any IIlher 5C:rvlceslllcJoded III AlIlcle 12 as part oC naslc S.rvlcd, naslc COmpensatiOn ,hall be computed.. (allow" (ltum tw... 01 compmuallon. ,,,,twIIIR Itlpa.Jd,td 'UlftJ, mull/pin or p.trcml~. cUId IJtnll!V phtur. (jJ kllllh 1""'lCtUI" "",'hOlt, nJ mmptfUtlllrm IIppl~, II 1lft'ISJ4It)' J Six Percent (6%) of Construction Cost AlA OOCU....-r '141' OWN!R.ARCIIlTECT AGREEMENT' FOURTUN'Tl1 !.OmeN' AlAe. <l19ft1 Till!. AMERICAN IN!lTITUn OF ARCIIITECn. 11'~ NE'.: YORK AVENUE. N W , WASIIINGTON, 0 C lll()l)f1 B141.11187 8 ( (.l . .. '. . 11.2.2 Where comperuallon IJ b"",d on a .tlpulaled .um or 1",,,,,,nuMe of CIlll5uuctlon CoSl, proW'" paymenlJ for 1l;L\lc Service. In each ph... .hiIU tOlallhe follow"M percenta8e. of Ihe tlllal \la,lc Conlpell5allon payable, (Imm ,.JeI.t;""'" pblutf AJ (I(IprofJn'lft I Schemallc DcsI8ll Ph""" De.I8ll Developmem Ph.."" COlUtNcllon DocumenlJ Ph..,e, Blddln8 or Ne8011allon Ph...., COlUlNctlon Ph..., TOI21 \l;L\lc Compernaulln, Fifteen Twenty Forty Five Twenty perccm( 15%) percent ( 20%) percem( 40%) pereem ( 5%) pcrccm( 20'l(.) one hundred percem (\(~)'l(,) 11.3 COMPENSATION FOR ADDITIONAL SERVICES 11.3.1 FOR PROJECT REPRESENTATION nE'.'OND \lASIC SERVlCES,;1S de.cribed In P;Ir:lll""ph 32. compcn52llon .hiIU be com' poted ... follow., Architect's Standard Prevailing Rates 11.3.2 FOR ADDITIONAL SERVICES OF TilE ARCHITECT. J' described In Article. ~ .nd 12. olher Ihan (I) Additional Prolect Rcpre~entatlon, ;IS dc~crlhrd In PJrJMraph :\ '!. anu (.!l 'lcr\'ln's Hlf..'luoec.J In Artidc I.! as pare or IbslC Services, bUI excluding services of cunsulunts. (OmpenSilliun shall he com pUled as Cnllows: tI".~" hdlll II) wmptlfl"'IfI1f IIu/l4dmll ratl's atlllA,r ,",,/I/Plt'I"1 /JIll'tl ,\-twm,..1 "c'XP"'Ut' I'" l'rllIl '/klh lflll/l""pffll....... alul 'dl'IlI/b' "rllll"/Mt. ,"'d ,'aully ,,"'p/nln's_ 'I tf'tIU''''II '''(1111/1' ..fJt'fI/lf .,,'/"lCt'_ 'f/uh"" ",,,/llld," ,",,/11(1(11 H/ 1","pr"l~lmf' j'I'I'1l" '/111....'uar'.} Architect's Standard Prevailing Rates 11.3.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, lneludlnM additional "Nctural. me<:hanlcal and eleclrlC2l englnecrtns scrvlrn and 1I10se provided under Subp;lr:l8",ph H.19 or .denuDed in Miele 12 ;L\ pan of Additional Servl.... . mulUple of One and One-fourth ( 1.25) Uma the amounlJ bUled 10 the Archlle<:t for ,uch servlc... "'""lilY Ip<<l/ie Iypn 0/ CVlUad'~",s '" Arfld. Il, II rrqulrnl } 11.4 RElMllUIlSAU EXPENSES 11.4.1 FOR REIMBURSABLE EXPENSES, ... deoc"bed In 1';Ir:lll"'Ph 10.2. and any Illher lIem' ineluded in Anlele 12 as Relmbuluble EXpel15C5, . mulUple of one ( 1 ) IIm..lhe expcrue'lnl"\med by Ihe ArchllCCl. Ihe Archllcct'. employ... and COll5UIWll" In Ihe ImelC5t of Ihe Prolec!. 11.1 ADDITlONAL PROVISIONS 11.1.1 IF THE BASIC SERVICES covered by IhlJ A8reementluve not been compleled Wilhln thl rty-si X (36 ) montlU of Ihe dale bereor, Ihrou8h no rault l1f the Architect. eXlell5lon or Ihe Archllect'. ,ervlc.. beyond Ihat lime .hall be compclUaled ... provided In Subp;lr:lll""plu Itl.}3 and 1132. 11.1.2 PaymrnlJ are due and payable thi rty (30 ) day. from Ihe dale of Ihe Architec1" Invoice. Arnounu unpaid ________________ (.-- ) day..rter Ihe invoice dale ,hall bc:Ir Inleral allhe "'te emered below. or In lI1e absence thereof at Ihe legal rale prevailll1R from Illne 10 lime at Ihe prinCipal place of hwln... of Ihe Archllect. (flU"" ral. o/lrllnws, agrrfll ~{Wl" J (l/s~ry14u'l a~ ryqUI",,","'. u/1dn' IN Ftfkral Tru,h In ',,"dIn.., AI'. 1I,"llar Ua"and locdlcoPUIoImrrcrrdlllau1 andOlbtr rt'IJulaliOlU II"'" Ou"""'IfM Arrb" ",,'. pn"ctpol pl4Cn of trulUtnl. ,,,. 10,AII0I1 fl/ 1M ""I/f'l.1 ana rl.""hfn mal' aI/rer ,119 ld/klIIY 0/ '''11 pnH11Jf)h }/"CI/IC "RtU adI1c..bould br obtai,.""..". rnpre' to ",flOIU or nUld"/JCaIJllIU, and dIm "lldn1mll n-qu,r-rrra,"1I ILl'" aJ un""" dt..ldlllLlrtf or 101'1111,," } 8 8141.1917 AlA OOCUlftNT "4, . O\\'NER."RCIIITECT AGREEMENT' FoURnlNl11 EDlneN . AlA- . CH9Il TIlE AMERICAN IN!lTITtJTE OF ARCHITECTS, 17\" NEW YORK "VENlJE, NW , WAStllNGTOH. D.C, 30006 li'1 ./ LAST DAY jY)R SERVICE: I r.~ Court or C.:mmO;1 .J.,UtY 17, 1~9lj. I ., .. .:::-... "'r I .... .,,- '''~I''l1...l, ... '~'."I , __~ ""'" 'w-.J............. _I. """'l"".....'-'..I,I Psnr:syl'lc:nio !\dUllS Coun ty Asphalt 'is. COllpany .. 'I'hp Ray Group :-fe. <J5- 1963 Civi I ----. :?-- :'tow, June 18 :9-22. !. SEZ:..!::'F 0: C:::'[3:::'=.1.~_'rn CO~~':"?, ?~ co ==-j,y ci.::ue:: . ... 0- . t:.: .:~.:: 0: Lancas te r C~c.::.:,! :~ :::::-.It.: :.:is \V:-::, ~ d...::u:::=t1 :~ -.,~- 1t ~ :':~ :=.d :-:.:k of := ?!~=. ,~. . ~;;-. " , ..'.... SDe:"~ ct C=::er..:u:d CJl:.:,tT. :'3. ASd2:nt or Semc:: ~OW, ~9 -. ot,:!cc..: "c. 1=-.~ :.::~ ~~~:~ '.:pan 1t =:1 !::u:6; l-" 3- c::ov Ct :::.~ :rit-.d .' ." :md _,t!. . :0 . ~::::i. .<:cwtI :.::.: .:::::::3 ~o :J..::..lW0, '~-'i c/ Cal.lArr. ::.. =:~_Q?,ci 19_ CCSTI sn'Y1C ~m.z.'.Gr: A:--:mA .y.... s Sw-c:': :1::C r.:r:.c:-.:=ed bdr::-: --~-_. s f_ "-.l KELLY, McLAUGHLIN & FOSTER BY: R. Thomas McLaughlin, Esquire Identification No. 03601 260 South Broad Street 1700 Atlantic Building Philadelphia, PA 19102 (215) 790-7900 Attorney for The Ray Group Inc. ADAMS COUNTY ASPHALT COMPANY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA. v. NO. 95-1963 THE RAY GROUP INC. PRAECIPE FOR REMOVAL FROM ARGUMENT LIST TO THE PROTHONOTARY OF CUMBERLAND COUNTY, Kindly remove this case from the argument list for December 9, 1998. KELLY, McLAUGHLIN & FOSTER BY: Dated :,f~,b-;p ;~~~~~;~{}i~1~~/;:'C~\L',";~,I,:;1;~,;i,:t~L:;.:,i",:i"\:"~1~IK'i;~~I~~~i~~,~rt~( ... i'. jl' ,- '/I I', .. ~ ( , L " , c.-.>:_ ,-!~ , lIt, -., I " '-- ~: , IJ, U C 1..: ,~ I.' C" ee, - t C'; '<. ,.... ;11' 1;_:.. i (.) N 0 ; ii " ~ i z z q ~ ~ 8 .. j 5 c g .. ~ ~ D .. ,. c U 0 z I~ x e 1= IE Z Cl Z D ~ i H ~ ~ ii ~ . .. 8 UI ~ )0 r- 0 D ~ ~ ~ ~ r L "... "., . .. '., .:~' ,;:',; ;. ~; ;;, '. ':',:" .. "'.n..' I '" .\.,.' . , . , - I ! ,~ \ , , . , . .', " '.. ., , " 0 ; t; ~ " ~ '" w i ~ ~ ~ ~ 0 .. :l 0 D >- .. 5 ~ .. . UI " e ~ 0 '" I~ a It '" .. .. ~ 3 ~ ~ L C ;; ~ ~ ~ 0 i ~ ~ 0( 0 UI ~ o 0 .. " II 0 - " ~ i L ,"".".... ,..' ,II .t,,..,.'., "_' lJFr: ~:J !(Nfj II 5. Defendant believes, and therefore avers, that there has been no compelling reason for the delay. 6. The factual circumstances surrounding this project and the factual circumstances surrounding the averments contained in the plaintiff's Complaint in this action occurred almost five (5) or more years ago and the plaintiff's failure to diligently prosecute this action has and will continue to result in substan- tial prejudice to the defendant in the defense of this action which could include, but not be limited to, the absence of information as to the present whereabouts of various important witnesses, the fading memories by the lapse of time of those witnesses still available, and/or missing or lost documents. 7. On October 27, 1998 the prothonotary placed this case on the inactive list pursuant to Local Rule 228 and Pa.R.J.A. 1901. 8. Plaintiff filed Written Objection to placement on the Court's List of Inactive Cases in which it alleged, inter alia, that despite the lack of activity it intends to engage new counsel and vigorously prosecute this matter. 9. The Honorable J. Wesley Oler, Jr. issued a RULE TO SHOW CAUSE dated October 27, 1998 which required, inter alia, the defendant to file an answer to the plaintiff's written objection within twenty-one (21) days of the date set forth in the RULE TO SHOW CAUSE and argument is to be held before Judge Oler on Wednesday January 13, 1999 lat 2:30 p.m.) with regard to such matter. l'j ~,,1-l t Cumberland County prothonotary's Office Page Civil Case Inquiry 1995-01963 ADAMS COUNTY ASPHALT CO (VS) RAY GROUP THE Reference No..: Filed........: Case TK~e.....: COMPLAINT Time..l......: J d 00 Execut on Date u gme ... . . . :. / i /G d Judge Assigned: OLER J WESLEY JR Sat D s nt.. Jur~ Trial. . . . Hi~ er court 1 H er court 2 ....................................................... .....**................. General Index Attorney Info ADAMS COUNTY ASPHALT COMPANY PLAINTIFF COHEN ROY S 614 NORTH FRONT STREET HARRISBURG PA 17104 RAY GROUP THE 127 EAST ORANGE STREET LANCASTER FA 17602 ~YS510 1 4/17/1995 15:35 0/00/0000 0/00/0000 DEFENDANT MCLAUGHLIN R THOMAS .**................................................................***...**..... * Date Entries * *****************************************************************.*****.******** COMPLAINT - CIVIL ACTION PRAECIPE TO REINSTATE COMPLAINT - BY RENEE KILGARRIFF ESQ SHERIFF'S RETURN FILED Litigant.: RAY GROUP THE SERVED : 6/26/96 DATE RETD: 7/10/96 county Nm: LANCASTER costs....: $62.60 Pd By: COHEN' HUNTINGTONl PC 07/03/1996 ENTRY OF APPEARANCE FOR DEFENDANT BY R THOMAS MCLAUGHLIN ESO ANSWER OF THE RAY GROUP INC TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NEW MATTER-COUNTERCLAIM PURSUANT TO PA RCP 2256 ANSWER TO NEW MATTER AND NEW MATTER-COUNTERCLAIM RULE TO SHOW CAUSE 10/27/98 OBJECTION TO PLACEMENT ON COURT'S LIST OF INACTIVE CASES - IN RE HEARING WEDNESDAY 1/13/99 AT 2:30 PM IN COURTROOM NO 1 J WESLEY OLER JR JUDGE COPIES MAILED 10/28/98 11/02/98 ORDER OF COURT - DATED 10/27/98 - IN RE PURGE LIST - CASE WILL NOT BE PURGED AT THIS TIME CONDITIONED UPON FILING OF PETITION AND PROPOSED RULE - BY J WESLEY OLER JR J - COPIES BY THE COURT ................................................................................ * Escrow Information · * Fees' Debits Bea Ba1 Pvmts/Ad1 End Ba1 * .....**......................**...............**,.......................***.**.. 04/17/95 06/17/96 07/03/96 07/05/96 07/12196 07/31/96 10/28/98 -. COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE 35.00 .50 5.00 5.00 35.00 .50 5.00 5.00 .00 .00 .00 .00 ------------------------ ------------ 45.50 45.50 .00 .......................................................................*.***.... . End of Case Information * ..........................................................................****** TAU~ GOPY FROM RECOr,O In Tr.:':' :'.i:1'1 ...;i":r.-:..~t. I h:;r~ Ij:;l') at:! my lI::md . I' .... " .'1 r' .. '.' ,..., " ,. /"r" "0 p' , .;J ....' o.J """ ,..\;.~!. ~.';I.,;:, ..n \01" h~n." ". rills 11!:: JJ,i~ lJt'1ttrV<~ 19 <If '-- "'1" C. hlLfJh, ,tf. I I Prothonotary .. , i :11)i/ :.~ ". I :' ,~ ) , .' ., I .' . 'I ~ 3 ' ,-,,, ',:".1 I ';:", I ' .'" j ",".i" .','" ..:. " r .. .1", '. ..""' -"- LAW OFFICES ,t' 1/11 KELLY. McLAUGHLIN & FOSTER 1700 ATLANTIC BUILDING 260 SOUTH BROAD STREET PHILADELPHIA. PA, 19'02 -''<' .,Vti,;-"',.;.c...."i~.,L'..--"...... .... " ,. .'., L,:"'~j..".,,,..~..,.,,....-. ~. .... . ~ . - ---. .'."_ .0-4 .-..,~ . -.... , '\ \. , (') l.n () I, ",,"J: , ':") ~ """ :-} ') [1:;' '-1 ',-' ., . ',1 I , f.I, N , ~ l iJ '-" I', - ,I ,J t::.j ~ ",-; I'"" \'.-') :1: . ! (~) . , - (.JITI .-- , , .. ~... J~ ::1 (J1 'lI -. .-1 :...; 'tJ ..J , ," ~ ~n .'~ ~ LT> "- . - ~ :-t:: ',I ,~ ~ ~ C.. In \,--; 'CI .., ~~ , r'l '\. ~ ~ V, ! .~ "& (>" '-.l _I~~ .J~ ,Ll /7, ff1~) ,r nl't{o..IJ'(~ /I.""I,'5ltrt.J. )~~J lIIIlJl~~(J . LJ 0 u ~ ~ z: 21 '" ~ ~ ::> '" rn z: J ~ ~ ~ . ~~~illj >< > ~ E-< :<: ~ J: ~ ;;; ::> 0 [;J '0 -I' u ~ !i ~ E-< ffi f,! J: 8 ~ ......, -' ...... . . '- . ... .;...... '" \ . ~- '..<t." .... .."" ~. . j. .. -'OJ, \ , , and correct copy of the Contract between ACA and the District is attached hereto and made a part hereof as Exhibit "1." 4. At all times relevant hereto, Ray was the project architect retained by the District to oversee the design and construction of the Project. 5. Pursuant to the terms of its contract with the District, ACA was to be paid in excess of $2.3 million for its work and was to be substantially complete with its work on the Project by September 15, 1994. 6. Due to inadequate design by Ray and its agents, significant delays were incurred by ACA and other prime contractors on the Project. 7. As a result of the construction delays which emanated in large part from the design changes and dimensional errors caused by Ray, ACA was forced to perform the lion's share of its work out of sequence, thereby incurring significant additional costs. 8. In addition, as a result of these dimensional errors, ACA was required to rework several sections of the Project including, but not limited to: a. the elevations at the main entrance; b. the elevations in Drive "A"; c. the location of Drive "B"; d. the elevation and length of drive "0"; e. the curb cutouts at the entrance to the Middle School; f. the] ocation of the parking lot to the west of the Middle School; 2 " ,J.., \. ~ '--. '. I 1. the alignment of the curbs on Drive "ClI; the elevations of the staff parking lot; the grades at the student plaza; the grades at the main entrance to the Middle School; the grades of the blacktop access road behind the g. h. j . k. school; l. the grades of the ramps into the school; m. the scoring pattern at the entrance to the Middle School; and n. the location of the sidewalks and the parking lots in the Middle School. 9. As a result of these dimensional changes, ACA was forced to expend additional monies to perform the same work on more than one occasion. 10. In addition, as a result of these dimensional errors, ACA was unable to complete its work in a timely fashion. 11. On or about November 9, 1994, ACA received a letter from Ray advising ACA that there were priority work items which needed to be completed. 12. The November 9,1994 letter indicated that if these items were not completed by the dates indicated in the letter, the District would have the work performed by others and would deduct the cost of completion from ACA's contract. A true and correct copy of this November 9, 1994 correspondence is attached hereto and made a part hereof as Exhibit "2." 3 . - 13. On November 11, 1994, ACA wrote the District advising of the substantial delays and changes which it had experienced on the project. A true and correct copy of this November 11, 1994 letter is attached hereto and made a part hereof as Exhibit "3." 14. In response to the November 9, 1994 leLter, ACA began to work on the priority items referenced in the November 9, 1994 letter. 15. As a result of ACA's efforts, the majori~y of these priority items referenced in the November 9, 1994 letter were completed by the dates indicated in the letter. 16. Notwithstanding the foregoing, however, the District interfered with ACA's attempts to complete all of the items referenced in the November 9, 1994 letter. 17. Specifically, the District, through Ray, refused to provide ACA with direction as to the grades to be used to repour the front entrance to the Middle School. lB. Ray had rejected ACA's initial pour in the front entrance area, which occurred on or about October 15, 1994, claiming that the pour was made at the wrong grade. 19. ACA respectfully contended that the grades had been changed by Ray and that it needed to be directed in writing by the District to revise the sidewalk in the front entrance area. 20. Despite these repeated requests, no such direction was ever issued by the District or Ray. 21. On November 16, 1994, Ray issued a second letter to ACA indicating that the concrete walk in question had still not been 4 \. " . ; corrected. A true and correct copy of this November 16, 1994 letter is attached hereto and made a part hereof as Exhibit "4." 22. This November 16, 1994 letter indicated that this waS the second seven (7) day notice issued by the District as required by Article 2.4.1 of the General conditions of the Contract. 23. In response to the November 16, 1994 letter, counsel for ACA wrote to counsel for the District advising that the grades in question which had been set to the sidewalks were set improperly by the District's agent, Ray. 24. On November 18, 1994, however, ACA agreed to perform the sidewalk work under protest, commencing on Monday, November 21, 1994. 25. Commencing on Monday, November 21, 1994, ACA's forces worked assiduously to perform all concrete work in the effected areas. 26. Thereafter, ACA's forces worked each day, with the exception of Thursday, November 24, 1994, which was Thanksgiving, and November 28, 29 and 30, which was hunting season. 27. On November 22, 1994, Ray issued another letter advising ACA that certain items described in the November 9, 1994 correspondence were not completed by the requisite dates. A true and correct copy of this November 22, 1994 correspondence is attached hereto and made a part hereof as Exhibit "5." 28. The November 22, 1994 letter from Ray indicated that this was the second seven (7) day notice required pursuant to Article 2.4.1 of the General Conditions and further indicated that if ACA did not complete the work, the District would hire another contractor to perform the work and delete the cost thereof from ACA's contract. 5 ,. . . . 29. The November 22, 1994 letter ignot'ed all previous correspondence issued by ACl\ including, but not limited to, ,\Cl\' s prior notices of delay to the District and Ray dated l\ugust 1, october 17, November 11 and November 16, 1994 which are attached hereto and made a part hereof as Exhibit "G." 30. Despite working on the dates set forth above, ACA was unable to complete its work in the front entry area to the Middle School because the District and Ray failed and refused to remove numerouS scaffolds, ladders, piles of plywood and other materials situated in the areas to be worked on by ACA's forces. 31. Thus, the actions and omissions of the District and Ray directly contributed to ACA's inability to complete critical activities about which the District and Ray were complaining. 32. On December G, 1994, ACA received a notification from the District, through Ray, that a deduct change order had been issued deducting the majority of the remaining site work and concrete work to be performed by ACA on the project. A true and correct copy of this December 6, 1994 deduct change order is attached hereto and made a part hereof as Exhibit "7." 33. On Wednesday, December 7, 1994, ACA received notification from Ray that the District had moved to terminate its contract pursuant to Article 2.4.1 of the General Conditions for failure to complete critical work in a timely fashion. A true and correct copy of this termination notice is attached hereto as Exhibit "B." 34. On December 7, 1994, l\Cl\ learned that Ray intended to remove and replace certain sections of sidewalk previously poured by ACA and previously accepted by Ray. 6 .,', .. I' ~\ 35. ACA expressed ita concern to the District that one of the reasons for the removal of this concrete would be to destroy evidence which would establish that the quality of the concrete work performed by ACA was acceptable. 36. In addition, ACA advised the District that another possible reason for removing ACA's work was to obliterate any ability for ACA to obtain payment for the completed work performed. 37. Most important, ACA advised the District that the primary reasons for removing work was to obliterate any evidence that Ray had improperly set the grade and contributed to the delays complained of by ACA. 38. On December 9, 1995, ACA filed a petition for Temporary Restraining Order with the Court of Common Pleas of cumberland county to enjoin the Distr!,ct from terminating ACA's contract without a hearing on its request for a Preliminary Injunction. 39. On December 9, 1995, this Honorable Court entered a Temporary Restraining Order in the form attached hereto as Exhibit "9" granting a Temporary Restraining Order and scheduling a hearing on ACA's Petition for Preliminary Injunction for December 14, 1994. 40. The Preliminary Injunction Hearing was ultimately held on December 21, 1994 and January 4 and 5, 1995. 41. On January 6, 1995, the Honorable Edgar Bayley entered an Order in the form attached hereto as Exhibit "10" granting ACA's request for preliminary injunctive relief. 42. On February 23, 1995, the Honorable Edgar Bayley issued an Opinion in support of its Order to enter a Preliminary Injunction in 7 '" . " .. ~ ,. favor of ACA. A true and correct copy of this Opinion is attached hereto and made a part hereof as Exhibit "11." 43. On December 26, 1994, ACA placed the District on notic~ pursuant to paragraph 14.1.1 of its contract wi th the District that the District was in material breach of its contract by reason of its failure to pay ACA for work performed during the month of November 1994. A true and correct copy of this correspondence is attached hereto and made a part hereof as Exhibit "12." 44. Notwithstanding the foregoing breach by the District, ACA continued to perform the site work on the project from November 1994 through April 1995. 45. Despite the fact that Michael Patton, President of Ray, admitted in sworn trial testimony on December 21, 1994 at page 45, lines 1-5 of the trial transcript that if ACA was not terminated it was due the sum of $83,000.00 for work performed through November 1993, those monies were never paid by the District to ACA. A true and correct copy of Mr. Patton's testimony is attached hereto and made a part hereof as Exhibit "13." 46. Rather, the District advised ACA by letters dated January 19 and 20, 1995, that it was not releasing these funds based upon direction from Ray. A true and correct copy of these letters are attached hereto and made a part hereof as Exhibits "14" and "15." 47. In addition, the District has approved change orders in the amount of $4,000 and $20,562 for additional work performed by ACA, which again have not been released to ACA. A true and correct copy of 8 ., , .... .. correspondence from the District confirming these amounts as being due are attached hereto and made a part hereof as Exhibit "16" and "17." 4B. On March 30, 1995, ACA submitted its most recent payment requisition, No. 15, which reflected all work performed by ACA between the months of November 1994 and March 1995, which sought payment of $223,360, and which did not include the $112,763 being held in retainage by the District. A true and correct copy of that payment requisition is attached hereto and made a part hereof as Exhibit "lB." 49. The District's failure and refusal to pay these five (5) months of invoices was based on direction by Ray despite the sworn trial testimony of Michael Patton, President of Ray, that $B3,000 was clearly due and owing to ACA for November if the termination was overturned. 50. Ray's refusal to allow the District to pay monies to ACA despite its sworn trial testimony that monies were due and owing for work performed in November constitutes an intentional interference with ACA's contract with the District. 51. The last payment application which was approved by Ray was Application No. 11 covering work through Octvber 1994 in the amount of $247,BBB.75. 52. Since that payment, Ray has not certified any more of ACA's payment applications, specifically Nos. 12, 13, 14 and 15. 53. Since Ray has refused to certify any of ACA's applications for payment, the District has not paid ACA any additional money. 54. Because ACA's contract with the District cannot be terminated, pursuant to Court Order, the District is contractually required to pay ACA for work it completed on the Project. 9 . .' . . J. 55. Pursuant to paragraph 9.4.1 of the contract between ACA and the District, Ray is required to either issue to the District a Certification for payment with a copy to ACA, for such an amount as it determines is properly due, or Ray is required to notify ACA and the District in writing of Ray's reasons for withholding the certificate in whole or in part as provided in subparagraph 9.5.1 of the contract. 56. Ray failed to notify ACA that it would not certify the payments to ACA required in 9.4.2 of the contract until January 20, 1995. True and correct copies of this correspondence are attached hereto and made a part here of as Exhibits "14" and "15." 57. Nevertheless, Ray failed to attempt to meet with ACA to agree on a revised payment amount, as is required by Article 9.4.2 of the contract. 58. It was only after ACA's counsel notif ied the District, through its counsel, that ACA would file the present action against Ray that Ray even agreed to meet with ACA to discuss its payment applications. 59. The meeting between ACA and Ray occurred on or about January 24, 1995. 60. Despite the meeting with ACA's representatives, and the information provided to Ray by ACA, Ray has continued to refuse to issue a certificate of payment for any work performed by ACA since November 1994 to the present. 61. As a result of Ray'S refusal to issue a Certificate of Payment, the District has refused to pay ACA for any of the work that it has performed and completed on the Project since November, 1994. 10 -\ Jill . 62. Ray's failure to issue a certificate of payment has forced the District to breach its contractual obligations to ACA. 63. Ray's actions al'e intentional ;llld are an impropel- interference with the District's contract with ACA. 64. Ray's actions were not privileged and in (act were in direct contravention of the contract between ACA and the District. COUNT I DAMAGES FOR INTENTIONAL INTERFERENCE WITH THE CONTRACT BETWEEN ACA AND THE DISTRICT 65. ACA incorporates by reference the averments contained in paragraphs 1 through 64 above as if set forth herein at length. 66. Ray, as the project architect, was aware of the existence of a contract between ACA and the District. 67. Ray, as the project architect, was aware that the District was obligated to pay ACA on a monthly basis for work satisfactorily performed. 68. Ray, as the project architect, was aware of claims by ACA that ACA's work and the work of other prime contractors was delayed as a result of design deficiencies and dimensional errors caused by Ray and its agents. 69. Ray, as the project architect, was aware of the assertions of delay caused by design errors that were set forth in ACA's Complaint against the District filed in December of 1994 in support of its Motion for Temporary Restraining Order and preliminary Injunction, both of which were granted. 70. Despite sworn admissions by Michael Patton, President of Ray, that money would be due and owing ta ACA for work in November 1994 if the termination wel't~ overtunwd, Ray haG acted punitively against ACA 11 . , .. and has intentionally fililed to cel-tify any further puyment requisitions submitted by ACA despite the fact t.hat ACA has continually worked on the Project from December 1994 through April 4, 1995 and has unquestionably completed additional work which it knows to be meritorious in an effort to spite ACA. 71. The actions by Ray are wrongful and are not privileged. 72. As a result of the intentional wrongful actions of Ray, ACA has been damaged by reason of the nonpayment by the District. 73. Specifically, ACA has encountered consequential damages including out-of-pocket costs, damage to its reputation, exposure to lawsuits occasioned by its inability to pay for work performed by its subcontractors or materials supplied by its suppliers, and loss of future opportunities. WHEREFORE. Plaintiff Adams County Asphalt Company respectfully requests that this Honorable Court enter judgment in its favor and against The Ray Group in an amount in excess of $250,000.00, plus interest and costs of suit. COUNT II PUNITIVE DAMAGES 74. ACA incorporates by reference the averments contained in paragraphs 1 through 73 above as if set forth herein at length. 75. Ray'S actions, as set forth above, were not only wrongful but willful. 76. Ray, in intentionally interfering with ACA's contractual relations, was intentionally intending to harm ACA or at the very least was grossly reckless in its actions. 12 ., I:ll..a':~I_.1ILl .wer ',. " S. REPRESEHTAT10HS OF CONTRACTOR - The Contractor represents and warrants: A. That It Is financially solvent and experienced In and competent to perform the work and to furnish the plant, materials, supplies or equipment, to be so performed or furnished by Iti B. That it Is familiar with all Federal, State. Municipal and Departmental laws, ordinances and regulations. which may in any way affect the work of those employed herein, including, but not limited to, any special acts relating to the work or to the project of which it Is a part; C. That such temporary and permanent work requi red by the Contract Documents as Is to be done by It can be satisfactorily constructed and used for the purposes for which It IS intended and that such construction will not Injure any person or damage any property; and O. That it has carefully examined the plans, specifications and site of the work, and that it has sat'ls'fled itself as to the nature and location of the work, the character, quality and quantity of surface and sub-surface materials likely to be encountered, the character of equipment and other facilities needed for the performance of the work. and the general and .local conditions, and all other materials which may In any way affect the work or its performance. s. H€IRS, ETC. - This Agreement shall bind and Inure to the benefit of the heirs. legal representatives and successors and assigns of both parties hereto, except that this sentence shall not be interpreted to grant any right of assignment of any nature whatsoever to the Contractor. 7. The Owner and the Contractor each intend to be bound legally by this Agreement. IN WITNESS WHEREOF, the parties have executed the Agreement the day and year first above written. (Name or owner) -- --- " BY: (Vice) President of the Board of School Directors Attest: (Assistant) Secretary AGREEMENT 00500-3 .. -~....~.....,.,.., ..,. "t ..,. - r" 'l" ..... ..~ . .... - '" " ......,. . ," # Witness: '\"<_.~."-...,~. (IndIvidual Contractor) (Name ot IndIvIdual) TradIng and DoIng BusIness as (SEAL) ............................................--...---.....---.....-.............. Wl tness: (Partnership Contractor) . " (Name of Partnership) BY: (SEAL) Partner BY: (SEAL) Partner BY: (SEAL) Partner BY: (SEAL) Partner ......-.........................-........-....--..............-...--..-........... .- ATTEST: (Assistant) Secretary (Corporate Seal) (Corporation Principal) (Name of Corporattbn) BY: (Vice) President AGREEMENT 00500'-~ - 4'. .- ... . . WI . MIOlltl K, rmun. u. ann.u. ... So-.cn. AlA Jerome n. r"lot. AlA ....11I'- C. w_. U 'lll...... P. .Il......allool<l. AlA Donald D. ~c. ~1A "'ouJd ., 'n,...,. AlA The Ray Group Inc. A...,hlreclS oS&. PLanr.crs November 9, 1994 Hr. Robert Hwnaa, Jr. Adams Count) Asphalt Co., Inc. P.O. Box 1531 Harrisburg, PA 17105 RE: cumberland Valley Middle School Dur Hr. MUl1llla: Enclosed Is a copy of the November 4, 1994 letter from Derck and Edson Associates listing a priority schedule of sltework contract Items that need to be completed prior to \linter to address the School District's concerns for public safety on Site during the Winter. Note that for each Item listed there are dates to begin and dates to complete each Item of work. Please review the list of work and the time frame for completion and reply as to your fll"lll's ability or Inability to complete this work as outlined. Please be adVised that if any of the above referenced priority 1 telllS remains Incomplet. by the dates noted. the School District will have the work performed by others, deleting the cost thereof from your contract. This Is the first of the Seven day notices under the General Conditions of the Contract for Construction, Article 2, Para. 2.4.1. By copy of this letter we are hereby not I fylng your Bonding Company of this problem and are requesting their cooperation in de~llng with these Issues. Sincerely, .' ~'~n. Rt~ -- -- Hlchael R. Patton, R.A. President HRP/km Enclosure. 3 Pages cc: Bill Stephey Ed Haldeman Lee Brandt Jim Wenger Bob Hyers National Union Dr. Orr Brenneman Richard Vensel Richard Snelbaker, Esqu 1 re Fire Insurance Co. 12111;. Onn"c SI..I..1ocuur, Ph 1'16dl/(71";1 JIJ2.I\iO:JPAX \,:'1';') .\~2'S6'^ l:l/u,"'~" i.o.." ,," .-. ,.- .-. , t MlcllacI R. ranol!. R.\. Bonnl. II. So..... AU ....,.,..,... H. Ta1lot". "tA "'Ut... C. Wapct. U TboIsu P. ~k.I. .uA Dona14 D. ,iGlld. "lA an...&W N. .,",-,. <\M ~.. l\11 The Rav Group 1oe. Archl1eca &. P\anncn November 16, 1994 Mr. Robert Mumma, Jr. Adaas County Asphalt Co.. Inc. P.O. Box 1531 Harrisburg, PA 17105 RE: Cumberland Valley Middle School Dear Hr. Mumma: With reference to my letter dated November 4, 1994 directing Ad;uns County Asphalt to remove that portion of the concrete ~alk not tn co~liance with the contract documents at the main entrance to the above school, we offer the follo~in9. 1. The Ray Group Inc. has, by letter, directed removal of the work described above, and that corrective work waS to be completed by November 12, 1994 in accordance with General Conditions, Article 12, It.- 12.2 Correction of Work. 2. My site visits on November 14th and NovelDber 15th confirmed that no corrective ~ork ~as done on this portion of walk. 3. Paragraph 12.2.4 states: "If the contractor fails to correct non- confoming work within a reasonable tillie, the Owner may correct it in accordance with paragraph 2.4." Keeping in mind it.-s I, 2, and 3 above, this letter will constitute the OWner's 2nd seven-day notice to complete the correctiye work described. Please refer to the General Conditions of the Contract for Construction, Article 2.4. Carrective work must be completed by November 23, 1994 or the Owner will have this work corrected In accordance wtth Article 2.4, Paragraph 2.4.1. Sincerely, M{r.lMJ.Lf2.~ Michael R. Patton, President MRP/jls Encl.: Ray Group Inc. letter dated 11/4/94 Derek and Edson Assoc. letter dated 11/3/94 cc: Dr. 01"1" Brenneman Rick Vensel lee Brandt Ed Haldeman Richard Snelbaker, Esq. JaJAIlS Wenger Robert Myers National Union Fire Insurance ComRany of Pittsburqh File \J7 t. t)nn.c liUL.lIl4.-.I1Ier.l'i\ l":'au (711) J~t-4\1UJJ~AX 17111 191.1l1}tl " t " August 1, 1994 Richard C. Snelbaker, Esquire Snelbaker & Brenneman 44 West Main Street Mechanicsburg, Pennsylvania 17055 RE: Adams County Asphalt - Cumberland Valley Middle School project Dear Mr, Snelbaker: As you know, Adams County Asphalt Company ("ACA") is the excavation and paving contractor on the Cumberland Valley Middle School proj ect (II proj ect "), This letter shall serve as formal notification to the cumberland Valley School District ("District ") that ACA has been significantly delayed on this Project by the District and will need an extension of time and additional costs in order to complete its work, The justification for this request is as follows: 1. ACA was to perform work on the entrance to the old high school after it started this Project in July of 1993. One (1) week into the proj ect, however, ACA was directed by the District \:0 restore the entrance which had been excavated and to do no further work in that area until further notice. ACA failed to receive a notice to proceed in that area until June 20. 1994, a delay' of almost eleven (11) months. As a consequence, ACA will be unable to complete this contract by the scheduled contract completion date of ;P.August 31, 1994. . . 2. ACA has significant work to perform once the construction of the Middle School building has been completed, While the Middle School building was to be completed by August 1994, it is currently months behind schedule and is projecting a completion as of December 1994. ACA will need at least two (2) months after the exterior of the Middle school building has been completed to perform its own work activities. This estimate, however, is subject to increase depending upon the time when the area is turned over to AC~, In other words, AC~ was anticipating performing its work during the good weather months. If the building is not turned over until the onset of winter weather, additional time and costs will be necessary. Richard C. Snelbaker, Esquire october 17, 1994 page Two More important, as you know, Adams County Asphalt contends that its work on this Project has been significantly impacted by the stop work order issued for the entrance way and administration building in June of 1993. Adams County Asphalt was not given the notice to proceed with that work until twelve (12) months later or June 1994. There is no question that this twelve (12) month delay in authorizing work on 40% of the sidewalks impacted Adams County Asphalt's work on the proj ect. This is an issue which will have to be addressed at the end of the Project. Succinctly stated, Adams County Asphalt believes that it has the $70,000 sidewalk issue under control, It will be happy to provide a schedule to the School District for the pours which it intends to make. It will be happy to coordinate with Mr. Haldeman or anyone el~e at the School District should the School District have any qualms or concerns about Adams county Asphalt's abili\:y to perform this work, Adams County Asphalt' respectfully submits that in consideration for its continued performance of this work it must have its retainage reduced from 10% to 5t. It is our understanding that this issue will be discussed at the meeting tonight. Adams County Asphalt asserts that it has completed far more than 50% of the work which would justify the reduction in retainage pursuant to its contract. In point of fact, Adams County Asphalt believes that it is at least 80% complete and that it only has an additional $300,000 worth of work left to complete. If the School District were to reduce Adams County Asphalt's retainage to 5% and pay Adams County Asphalt'S most current invoice, the School District would still be holding approximately $600,000. which would be almost twice the value of Adams county Asphalt'S remaining work. In light of the foregoing, Adams County Asphalt is ~espectfullY requesting that its retainage be reduced and that its most current invoice be paid in full, If the School ~istrict were to decide not to reduce its retainage and pay the full amount of its invoice, Adams County Asphalt is respectfully requesting an immediate meeting with representatives of the school Board in an effort to walk the project and have an independent third pal:ty evaluate the value of the remaining work, Adams County Asphalt very much wishes to work together with the School Dist:rict and its agents to complete this Prl1ject as cost:-effectively and as timely as possible. Adams County Asphalt, however, cannot: and will not allow its money to be held hostage unfairly. Muiu- fl. ....~:Qn. It^. . . Bonnie M. lowen. AlA }Cf,la1C H. Taylor. A1A wUllam C. "IIIlCf. U Tbo.... P. MardJlllOlId. AlA Donald D. _Ie. AlA ftonald R. lnyder. AlA 811 The Ray Group Ine. Architects &. P\:mners December 5, 1994 Mr, Robert M. Mumma II Adams County Asphalt Co., Inc. P,O. Box 1531 Harrisburg, PA 17105 RE: Cumberland Valley Middle School Cumberland Valley School District Dear Mr. MUl11l1a: Under the conditions and terms of the General Conditions of the Contract for Construction (A201l, paragraph 14.2 Termination by the OWner for Cause, The Ray Group, as agent for the Cumberland Valley ~chool District, is hereby notifying Adams County Asphalt that your contract wi th the Cumberland Valley School District will be terminated within seven (7) days of receipt of this notice. Your surety is also hereby being contacted via receipt of a copy of this letter. OfficiallY, no further payments will be made to your company until the work is finished. The claim for termination is based upon the following reasons, not listed in any specific order: 1. Persistently or repeatedly refused or failed to supply enough properlY skilled workers on site. 2. Failure to provide continuous full-time supervision on site as required by the specifications. Additionally, supervisors wore continually changed without the prior approval or knowledge of the OWner. Failure to attend job conferences, therefore unable to coordinate your work with the other prime contractors and the Owner, and unable to report on projected work. . . 3. -- 4. Inability to contact anyone with the authority to make decisions. 5. PersistentlY changed earl ier agreed-upon areas of work to be started and completed. 6. Continually did not meet scheduled deadlines as pUblished in the specification$ and failure to complete any phase of the work before proceeding to any subsequent phase. Failure to furnish a construction schedule of work as required by the specifications. 7. Depended on the Owner's on-site representative to coordinate and direct the work of the contractor, 127 E. o",nsell.ll-1nosl.t. PA 1760:U(7171191-6101/PA.~ (717) 19H616 l' . , . .' . Mr. Robert M. Mumma, II December 5, 1994 Page 2 8. Refused to furnish a registered surveyor on-site to complete site layout work. As a result, the Owner was requ i red to hire a registered surveyor to continually check the work of the contractor. Consequently, many errors have been uncovered resulting in required corrective work by the contractor. 9. Persistent failure to make payment to sub-contractors as certified on the Application for Payment. The bonding company has requested Application for Payment history for numerous sub-contractors. 10. Materials suppliers refused to furnish materials to the site because of earlier lack of payment. Materials were reluctantly delivered cash-an-delivery (C.O.D.). 11. Continuous breakdown of on-site equipment causing delay to the project. 12. Persistent rejection of the quality of work resulting in some items being replaced 2 or 3 times., 13. Failure to properly install and maintain erosion and sedimentation measures as required by the specifications and by law. This list of reasons is far fro~ all-inclusive, but represents that sufficient cause exists to justify the termination of your contract by the Owner for cause. The Owner wll1 reserve all rights and remedies of paragraph 14.2 under the General Conditions of the Contract for Construction. The termination will become effectlve within seven days of receipt of this notice. No further work shall be completed after that date. ' Sincerely, JAAM (1. ~ctthv, MTChae1 R. Patton, R.A. President . MRP/j1s cc: National Union Fire Insurance Co. of Pittsburg - Robert Wittenberg R. Matthew Pettigrew, Jr. Dr, Orr Brennamen, CVSD Rick Vensel, CVSD Lee Brandt, CVSD Ed Haldeman, CVSO 8ill Stephey, The Ray Group Jim Wenger, Derck and Edson Richard Snel1baker, Esq. Flle , . 94-6945 EQUITY TERM hereby scheduled In Court Room No. 2 of the Cumberland County Court House In Carlisle, Pennsylvania, commencing at 12:30 p.m. on Wednesday, December 14, 1994. 8. Plaintiff shall file a bond or deposit legal tender In the amount of $10,000.00 pursuant to Pa, Rule of Civil Procedure 1531 (b) 1 or 2. The $10,000 bond required by paragraph 8 was posted, ACA continued working under Its contract as hearings on the merits of Its petition for a preliminary Injunction were held on December 21, 1994, and January 4 and 5, 1995.2 The following preliminary Injunction was entered on January 6, 1995: (1) Defendant, Cumberland Valley School District, is enjoined from terminating its contract with Adams County Asphalt Company based on any conduct of Adams County Asphalt Company through January 5, 1995. (2) As per the temporary preliminary injunction entered on December 9, 1994, defendant may permit other contractors, which It retains, to perform the work Identified In Directive No, 2 Issued by defendant dated December 5, 1994, a copy of which Is attached as Exhibit A to that order. (3) In addition to the $10,000 bond or deposit required In the order of December 9, 1994, plaintiff shall file an additional bond or deposit legal tender In the amount of $250,000 pursuant to Pa Rule of Civil Procedure 1531 (b). The $250,000 bond required by paragraph 3 was posted.~ The Cumberland Valley School District has flied a direct appeal to the Superior Court from paragraph 1 of the preliminary Injunction entered on January 6. As required by an order of this Court, 2. The hearing originally scheduled for December 14 was continued while the parties made efforts at settlement which was strongly urged by the court. 3. Pa. Rule of Civil Procedure 1531 (b). -3- . . 94-6945 EQUITY TERM project schedule required changes In where and when ACA could work. In some Instances, the School District also made grade and dimensional changes applicable to ACA's work. By the latter part of 1994, the School District was pressing Its contractors to have the new school building ready for occupancy after the Christmas break. The Architect was concerned that ACA would not be able to complete enough of Its work In time for that to occur, We believe that was the primary factor In terminating ACA. The new school did open on January 4, 1995, with a substitute contractor completing a portion of the work that had been assigned to Adams County Asphalt Company, (On page 2 herein, see paragraph 5 of the temporary order entered on December 9, 1994). We find, however, that ACA could have competently completed this work on time. ACA did have some problems on the Job which It has remedied, There Is further remedial work that has to be completed. That Is hardly unusual on a job of this size. It Is significant that neither the School District, the Architect, the landscape Architect, or any other agent of the School District, ever provided any advanced notice to ACA that, because of these difficulties, they were contemplating termination. Some of the reasons set forth In the actual notice of termination are Incidental, such as alleged failure to make payments to subcontractors, and the claim that the material suppliers refused to furnish materials to the site because of earlier lack of payment. There was no refusal or failure by ACA to supply enough properly skilled workers on the site. To terminate for falling to furnish a registered surveyor on site Is -7- ." , . 94-6945 EQUITY TERM not supported by the evidence. After ACA did have problems with its surveyors, the School DIstrict supplied a surveyor which ACA has used. The surveyor has served the School DIstrict and ACA well. The School District never Insisted upon ACA securing another surveyor, nor Is there any need for one, There Is no credible evidence to support the School DistrIct's contention that a significant breakdown of ACA's on-site equipment caused delay to the project. In those Instances where the Architect has objected to the quality of the work of ACA, the company has done the remedial work requested. Final work on the Installation and maintenance of erosion and sedimentation measures will be done as weather permits. We took some testimony on the work ACA performed following the notice of termination until the completion of our hearings on January 5. It Is obvious that the School District's position Is laid down In concrete. Nothing ACA did during this period even remotely satisfied the landscape Architect, Robert Myers, from Derek and Edson Associates. Despite all of the complaints against ACA alleging lack of adequate supervision, failure to attend job conferences, Inability to contact anyone with authority, and lack of coordination with on-site representatives, Myers did not try to work these matters out with Robert L Mumma, the knowledgeable owner of ACA who was on the site dally. Significantly, the only witness who testified for the School District who Is actually a District employee was Edwin Halderman, Its Clerk Of The Works. He has been employed by the School District for the last seven years. He formerly operated his own commercial and Industrial construction business. He .8. . , . . 94-6945 eQUITY TERM oversees this project and has overseen three previous School District constructlon projects. He testified that he has a good working relatlonshlp with the owner of ACA and was 'pulllng for [him] to finish the job.' Weighing the credibility of all of the witnesses and examining the evidence In totality, we find that as to termination, the School District did not act In good faith for cause under Article 14 of the contract. There was no substantlal breach of the provisions of the contract by ACA that warranted termination under Article 14.2.1.4. Nor was there a material breach by ACA that warranted termination under Article 14.2.1.1, 2 or 3, ACA has acted and contlnues to act In good faith In performing the contract. A far greater Injury would have resulted to ACA by refusing the grant of an Injunctlon. The Injunctlon did restore the parties to their status as It existed prior to the wrongful termination, The breach by the School District of the cause requirement for termination Is actionable and the preliminary Injunction did abate that activity, Based on our factual findings, plalntlff's right Is clear and the wrong suffered as the result of the wrongful termination Is manifest. Notwithstanding, the School District takes the posltlon that even If It was not entitled to terminate ACA for cause under Article 14, ACA Is nevertheless not entltled to preliminary Injunctive relief because It has an adequate remedy at law for damages. this Is a slgnillcant legal Issue. While on the surface the position of the School District has some allure, on closer examination we find It wantlng In equity. We are satisfied from the evidence there Is a real possibility that a wrongful .9. . . . . 94-6945 EQUITY TEHM termination would drive ACA out of business. ACA has made many commitments for labor to undertake this construction project. ACA owes over $300,000 to Its subcontractors on this project that would be tied up ad nauseam. At least three. quarters of Its work has been completed. Ninety percent of the business of ACA comes from governmental or public agencies that require bonding, The stigma attached to termination, even wrongfully Imposed, would adversely affect the ability of the corporation to secure performance bonds In the future. It would adversely affect the reputation of the corporation and thus Its ability to successfully compete In the marketplace. Having been subJect to a manifest wrongful termination, these are the types of Injuries that cannot be quanllfied and can cause Irreparable harm for which the type of monetary damages recoverable by ACA would be Inadequate. The parties, by Inserting a 'cause" requirement for termination Into this construcllon contract, have recognized the type of Irreparable harm that will befall a contractor as a result of an unjust termination. If plalnllff cannot preliminary secure relief for a violation of the cause requirement for termination, then that protection afforded to plalnllff against that type of harm Is a mere makeweight. ACA believes It has more than $300,000 more work to complete under the contract, while the landscape Architect believes It Is over $800,000. A good portion of the difference of opinion Involves a dispute as to how much remedial work there Is to complete. When the weather breaks, It will not take ACA long to complete this Job, Any Issues that remain can be resolved by further illig allan. For the foregoing -10- \,I I' \I...... ':II:J v;;J;,J'1 ~ ...... . . ....-- .'~ -----..........- .... ~\.o... .. ",.1 ~rJ aDams COUnTY aSPHaLT PUNT ADORESS: 2090 N. UNION ST.. MIDDLETOWN, PA (717) 566-3285 Oecember27,l9g4 VIA HAND DEU\lERY Edwin Haldeman Cumberland Valley School District 8746 Carlisle Pike Mechanlcsburg, PA 17056 Re: Adams County Asphalt - Cumberland Vall.y School District Dear Mr, Haldeman; As you know, Adams County Asphalt ('ACA') is the prime site work contractor on the Cumberland ValleV Middle School Project ('Project'). As you also are IlWll,., on November 23, 1QQ4, ACA submitted Payment Requisition No, 12 for processing by the District. As of this date, we h..... yel to receive payment of this Invalce. This constitutes l\ breach at the contract between ACA and the District. Specifically, I direct your altentlon to pll1agrapha 9.7,1 of the General Conditions and 9.6,1 and 9.7.1 of the Supp/em.ntaly Conditions to the Contract, Please be achllsed that Adams County Asphalt Is hereby putting the District on notice at Its Intention to hold the Dlalrict In default by r.ason at Its failure to make payment unless this payment Is Immediately received. Specl1lcally, ACA wlll withdraw from the Pl'l;lject on JanUIIIY 3, 19135, unless this payment has been re<:eived, In e.....nt ACA Is forced to leave th. Project because at the default of the District, ACA will seek entlUement to aU furltler monies due and owing to it Including but not limited to lost profit on the remainder at the work which It could not complete because of the District'. breach. MAILING ACDRESS: 814 N. FRONT STREET, PO, BOX 1531 . HARRISaURG. PA 17105 (717) 234~2()4 , FAX (717) 257.5370 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 \ 21 22 23 24 25 Whereupon, MICHAEL ROBERT PATTON, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. COHEN: Q Mr, Patton, can you state your full name and your residential address for the record? A My name is Michael Robert patton. I reside at Box 461, schaefferstown, pennsylvania. Q And you are the president of the Ray Group? A That'S correct. Q Ray Group is the project architect for cumberland Valley School District on the Cumberland Valley . . _.. - Middle school project? A That's correct. Q Are you familiar with the project? A ~es. Q HoW long has your company been working on this project? A over a year in the construction phase and approximately nine to ten months in the design phase prior to construction. Q Can you tell the court very briefly what your responsibilities are as the Ray Group to the district? A As the Ray Group? 8 1 2 3 4 5 6 7, 8 9 10 11 12 13 14 15 16 17 18 19 20 \ 21 22 23 24 25 . " your OWn letters many areas of work that Adams County Asphalt has started and completed. Did you take into consideration the grading work and the stone work that was done? A Q $23,OOO.00? A Q 'les. And you valued two months' worth of work at That's correct, How much was the total amount of the invoices submitted by Adams County Asphalt for that work? A Sixty thousand. Q Isn't it true, in fact, that the invoices totalled over $300,000.00? A I'm sorry, I thought you were talking about change order work. Q No, no, no. We're talking about the value of work done by Adams County Asphalt which hasn't been paid. That's been valued by Adams County at 300,000 plus, correct? A Well, I'm confused now, There was application tor payment number eleven and number twelve. What are you referring to? Q Both of them in total. Adams county Asphalt has submitted one, will be submitting another, which they have shown the Ray Group what it is going to look like, and together it totals about 300,000, give or take, for work 44 \ 1 2 3 4 5 6 7 8 9 10 11 12 - 13 14 15 16 17 18 19 20 21 22 23 24 25 .' that they belie~e is in place, correct? A ~es, to the best of my knowledge. Q How much have you valued that worK to be worth? A Approximately $83,000.00. Q Have you and Adams county had battles over the course of this project in valuing work? MR. SNELBAKER: Had what? MR. COHEN: Had battles over the course of the project valuing work, THE WITNESS: No. B'i MR. COHEN: . Q There haven',t been complaints by Adams .County - Asphalt about your group cutting their invoices? A Quite franklY, the arithmetic for all this and his application for payments have been incorrect. Q Is it your position that if Adams County Asphalt is terminated no further payment should be tendered to Adams county until the project is completed? A That's correct, Q ~ou expect the project to be completed before the summer of '95? A In that time frame, yes. Q And isn't it true that if there are claims between the district and Adams county your recommendation 45 \1~"'3U"'~U uu: oU r . t .'- " It&.: <JU~ ADAU& COUNTY ASPHALT COUPANY ews l!~T TO GOMflfTf . c 0 . . " R I DRlC'aJPPON OCIQIDULD "o...caw~ .............. TOr.... . IWJ\lOCII .... ..... OJ' VALU8 ,.wroUI 'l1ID --.m.T CONJ'l.JO"WP TO _.. 0100 ...... ..... ITGIJIIl .umnoam MobllLzallOn 45,000 4!l.000 0 4!l.000 1 00'lI0 0 2,250 Soli & Erosion SQ.~ l15,lIllO :l.1lIlll SQ,325 1 00'lI0 0 2,fl88 Lavout 52.000 38.500 12,110O .e.oUlO os... 2.llOO 2,470 CllllFIIIJ~Y) " 0407,3111 A03,2.04d 0 0403.2411 - 4,073 20,182 ,8tr1~"'''pIOlI 00.tl14 110,114 IiOll 00.1114 1 ocnlo 0 4,Il31 Oemollllon 3tl,I114 34.1150 :sso 35.300 lIlI... lIll4 1,7l1S 08" Cpp 75 75 0 75 100... 0 .. 10' CPP 2,lllIO 2.lIllO 0 2.lllIO 1 ocnlo 0 '<14 15' CPP ee._ tl7,5Otl 1.378 lllI,_ 100... 0 3,'" II1"cPP 50.2311 1541,2311 0 50.2311 1 ocnlo 0 2,.,2 24' CPP 41,~ 41 ,11M 0 41.1133 IlXnlo 0 2.087 30' cpp elI,Ol4 U,0,4 0 elI,Ol" IlXnlo 0 3,4111 3Il' CPP 27,205 27,205 0 27,205 IlXnlo 0 1,3tlO al.... Cone Box II,D711 5,000 0 5,000 114... 1175 2.50 3tl" H.rcp 7,250 11.020 0 11.020 ~ 1.230 301 'nl.ta type C 42,:110 41,4&4 0 4Il.~ lItl% 84tl 2,013 Inl'" IVpe C Obi 7,070 7,070 0 7,070 IlXnlo 0 554 Inl_ TVpe M 5.0lI0 II,OllO 0 !l.0lI0 locnlo 0 ~ Lawn Oraln. 18,eAO 1 e,cwo 0 18,&40 IlXnlo 0 lllI:I Endwalla 211,3llO 24.012 Il3ll 24,850 911... 500 1,2"" Menhol.. 111,111. 111.1I1D 0 15,Bl11 1 ocnlo 0 7111 Oudlt StnlC1Ure 1,000 1,000 0 1,000 locnlo 0 110 JunCllan Boa 2,1iOll ~500 0 2,IiOll locnlo 0 125 PVC plptnll 211,000 24.3711 1124 25,000 I ocnlo 0 1,2.50 Fin. GAId. (BY) 41.1525 35.lI45 lI.lllIO 41,!5a 100'10 0 2.0711 2A Subbeee (1I>n) 150,eo. 141,7115 13,248 156,041 - 1.507 7,752 BCBC (lion) :I2!l,4!ltl 182.11211 22.:JlIS 215,311 - 10,145 10,788 10-2 wrg (ten) "",312 117,000 17,010 104,010 91.. 10,302 5,201 3A Modltlecl (I/In) llO4 304 0 llO4 locnlo 0 15 Un. Palming 1I,5!50 0 0 0 "" e,550 0 Ramp Cono ICY) 3,7IlO 0 0 0 "" 3,7110 0 Cono.- Channel 7,ooe 0 0 0 "" 7,008 0 Curbe (LF) 172,2110 141,IllI11 28._ Illl1,1I34 lItl% 3,4018 11,_ 81d__'" (LF) 75,328 11,700 1lD,!l10 48.210 114... 27.11. 2,411 Tennle CoUrll 37.7"51 24,500 0 24.500 OS'" 13.257 1,225 Run Trek & Fld ....,lIlI2 211,105 111,1147 4-4,lIlI2 1 ocnlo 0 2,2.e FI_ & Equip 18,UO 1,.88Q 0 1',1I11ll 72% 04.827 5lI6 FlIlIpoIe 4,7el1 0 0 0 "" 4,?aG 0 8111111nll 23,eoG 0 0 0 "" 2:l,etJO 0 Tldc Ugnll 48.eoo 3,223 ~.3n -46.110O 1 cxnlo 0 2,330 land_ping 205,000 103,7!lO 111,000 121,750 ~ ~,21lO 8,OlllI F.ndnll ~2,300 2,115 12.742 14,657 SS'll. 27,448 743 CO. 1 -I 1 :13,857 I 33.M7 0 133,057 locnlo 0 8,_ CO.' -0 11.1125 U25 0 11,1125 lOO'll. 0 341 CO. 1 - 10 1~,1117 14,187 0 14,1tl7 l00'll. 0 7011 2,403 202 2.0111.347 2:1S 1115 0 2.255.2112 Gml. 297.9040 1127113 Bale contract C,o.. C.o.. C.o.. Tot&l Conuact 2,~IlS,202 o o o 2,~03,202 ComplMad . Sterad RlI1enaon (5')6) earned I.. retention Leas previous payments Current payment due 2.255.2112 112,1113 2,1.012.41111 1,010.130 229,3110 'llo Complate. 1111.048"